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A 


HISTORY  OF  SLAVERY 


IN 


VIRGINIA 


BY 

JAMES   CURTIS   BALLAGH 

Associate  in  History,   Johns  Hopkins  University 


BALTIMORE 

THE  JOHNS  HOPKINS  PRESS 
1902 

JOHNSON  REPRINT  CORPORATION  JOHNSON  REPRINT  COMPANY  LTD. 

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]/,  J  y     THE  BASIC  AFRO-AMERICAN  REPRINT  LIBRARY 

Books  on  the  history,  culture,  and 

social  environment  of  Afro-  Americans 

Selected  by  Clarence  L.  Holte 


COPYRIGHT,  1902,  BY  THE  JOHNS  HOPKINS  PRESS. 


First  reprinting,  1968,  Johnson  Reprint  Corporation 
Printed  in  the  United  States  of  America 


//•*' 


TO    THE    MEMORY    OF 

MY   AUNTS 
SUSAN    CATHERINE    WITHROW 

AND 

PHOEBE    CAROLINE    PATTERSON 


CONTENTS. 


PAGE 

PREFACE vii 

CHAPTER  I.    SLAVE  TRADE  AND  SLAVE  POPULATION. 

'-•••  Slavery  as  a  Stage  in  Social  Progress 1 

Origin  and  Progress  of  the  Modern  Slave  Trade 3 

Importation  of  the  Subjects  of  Slavery 6 

Restrictive  Duties  and  Petitions  to  the  Crown 11 

Prohibition  Attempted  and  Realized 19 

-Slave  Population  and  the  Domestic  Slave  Trade 24 

CHAPTER  II.     DEVELOPMENT  OF  SLAVERY. 
Legal  Status  of  the  Slave. 

Origin  of  Status , 27 

Status  of  the  Early  Negroes  and  Indians 28 

Relation  of  Servitude  to  Slavery 31 

Subjects  and  Principles  of  Enslavement 45 

Mulattoes,  Mestizos  and  Persons  of  Color 56 

Incidents  of  Slavery;  Rights  and  Duties , 62 

Penal  Legislation  concerning  Slaves 82 

Social  Status  of  the  Slave. 

Regulation  by  Custom 96 

Personality  of  the  Slave  and  Customary  Rights 97 

Maintenance,  Guardianship,  Education  and  Liberty 102 

Negro  Preachers 110 

CHAPTER  III.     MANUMISSION,  EMANCIPATION  AND  THE  FREE  MAN. 

Withdrawal  of  Restrictions  to  Liberty 116 

Public  and  Private  Manumission 119 

Suits  for  Freedom 123 

-   Transportation  of  Freedmen 125 

Anti-Slavery  Sentiment 127 

Plans  for  Emancipation < 130 

Slavery  Polemics  and  Apologetics 142 

Status  of  the  Free  Negro 145 

BIBLIOGRAPHY „ 149 

V 


PREFACE. 


In  the  literature  upon  American  slavery  there  is  no  such  dis 
tinctive  study  of  its  institutional  origin,  development  and  relations 
as  has  been  made  of  certain  similar  forms  of  social  organization 
in  Europe.  This  fact  will  serve  to  explain  the  method,  con 
structive  rather  than  narrative,  of  the  present  volume  and  the 
reference,  somewhat  more  general  than  the  title  suggests,  to  the 
experience  of  other  American  colonies  and  States,  and  to  that  of 
Europe  where  it  has  seemed  necessary. 

It  is  recognized  that  objective  views  of  the  local  character  of 
slavery  in  every  division  of  the  present  United  States  where  it  has 
existed  are  prerequisite  to  its  true  history  in  this  country.  My  wish 
has  been  to  contribute  to  this  end  by  a  careful  investigation  of  the 
institution  as  it  existed  in  one  of  these,  Virginia,  with  a  candid 
statement  of  results.  The  priority  of  this  colony  and  the  long 
coexistence  there  of  forms  of  dependence  give  unusual  interest 
and  value  to  its  institutional  experience,  and  make  it  the  natural 
starting  point  of  the  general  inquiry. 

For  the  invariable  kindness  with  which  the  historical  materials 
relating  to  the  subject  have  been  made  accessible  to  me  I  desire 
to  thank  particularly,  among  many  who  have  aided  me,  Messrs. 
Philip  A.  Bruce  and  W.  G.  Stanard,  of  the  Virginia  Historical 
Society ;  W.  W.  Scott,  of  the  Virginia  State  Library ;  John  L. 
Campbell,  Secretary  of  the  Washington  and  Lee  University; 
Frederick  W.  Page,  Librarian  of  the  University  of  Virginia; 
Dr.  Philip  R.  Uhler,  Provost  of  the  Peabody  Library,  Balti 
more,  and  Hon.  A.  R.  SpofTord,  of  the  Library  of  Congress, 
Washington. 

Portions  of  Chapter  II.  have  appeared,  in  somewhat  modified 
form,  in  the  pages  of  the  Conservative  Review  and  the  permission 
to  make  use  of  this  matter  is  due  to  the  courtesy  of  the  editors 
of  that  periodical. 

vii 


viii  Preface. 

I  take  especial  pleasure  in  acknowledging  my  indebtedness  to 
my  colleagues,  Professor  J.  M.  Vincent  for  valuable  assistance  at 
every  stage  of  the  progress  of  the  book  through  the  press,  and 
Professor  W.  W.  Willoughby  who  also  has  read  the  proof-sheets, 
and  to  Mr.  N.  Murray,  of  the  Johns  Hopkins  Press,  for  suggestions. 

Acknowledgment  due  to  others  is  to  be  found  in  the  footnotes 
and  in  the  appended  bibliography. 

J.  C.  B. 

JOHNS  HOPKINS  UNIVERSITY, 
April  8,  1902. 


HISTORY  OF  SLAVERY  IN  VIRGINIA. 


CHAPTER  I. 

THE  SLAVE  TEADE  AND  SLAVE  POPULATION. 

African  slavery  has  had  a  long  institutional  history.  Both 
the  literature  and  the  monuments  of  ancient  Egypt  show  that 
the  Ethiopian  slave  was  known  not  only  to  classical  but  to 
remote  antiquity.  The  origin  of  domestic  slavery  in  Africa 
is  to  be  referred  to  the  same  general  cause  to  which  are 
ascribed  other  historic  forms  of  slavery,  viz. :  some  essential 
or  actual  inequality  between  individuals  or  sets  of  individuals 
in  their  broad  social  relations.  Such  an  inequality  continued 
and  intensified,  gradually  and  almost  imperceptibly  creates  a 
status  marked  by  distinct  incidents,  which  in  time  assumes 
the  form  of  a  definite  social  institution,  recognized  first  in 
custom,  then  in  law. 

Slavery  represents  thus  a  stage  in  social  progress,  tending 
constantly  to  emerge  wherever  social  units  of  unlike  order  or 
capacity  are  brought  into  continued  competitive  contact  in  the 
struggle  for  existence.  The  practical  economic  and  political 
principle  of  subordination  in  such  a  case  replaces  the  more 
theoretical  conception  of  coordination  and  cooperation.  His 
torically  speaking,  industrial  society  in  a  large  sense  has,  with 
out  exception,  been  founded  upon  the  subserviency  of  one 
activity  or  agent  of  labor,  or  set  of  such  activities  or  agents, 
to  another.  The  gradation  of  labor  forms,  even  in  the  case 
of  a  single  individual  agent,  is  but  the  simplest  expression  of 
a  similar  truth.  As  society  is  not  composed  of  a  single  unit, 
neither  is  it  composed,  as  at  present  constituted,  of  compound 

1 


2  History  of  Slavery  in  Virginia. 

equal  ones.  Society,  and  particularly  industrial  society,  is 
essentially  complex.  Complexity  appears  within  the  simplest 
social  unit  itself,  and  is  reflected  in  the  manus  of  the  husband 
and  in  the  dominium  of  the  father,  which  latter  in  ancient 
society  developed  institutionally  into  the  patria  potestas.  The 
Roman  clientela  and  the  German  comitatus  illustrate  the  same 
truth,  more  especially  in  the  political  sphere.  Ancient  slav 
ery,  medieval  vassalage  and  villainage,  modern  servitude  and 
slavery,  and  forms  of  dependent  so-called  free  labor  all  par 
take  of  a  common  quality  of  subordination  in  their  origin  and 
development.  From  a  past  institutional  standpoint  at  least 
the  mere  existence  of  such  results  sufficiently  denies  the  doc 
trine  of  natural  equality  and  inalienable  rights  in  the  social 
sphere.  Given  inequality  of  capacity  or  condition,  whether 
natural  or  acquired,  the  evolution  of  the  various  forms  in 
which  dependent  labor  has  found  expression  is  determined  by 
environment,  and  the  particular  form  by  the  degree  of  the 
relation  of  dependence. 

Historic  connection  then  of  examples  of  these  various  forms 
as  antecedent  and  consequent  is  not  a  necessary  assumption, 
though  in  some  cases  it  is  a  certain  or  plausible  one.  In  the 
case  of  slavery  at  least  the  various  phases  it  assumed  in 
ancient  times,  in  Babylonia,  Egypt,  Assyria,  Phoenicia,  Greece 
and  Rome  for  instance,  present  an  institutional  continuity  that 
may  have  been  based  more  or  less  upon  actual  contact,  but  it 
is  also  true  that  local  conditions  have  existed  amongst  all 
known  peoples  at  some  stage  of  their  development  sufficient 
to  account  for  the  native  origin  of  the  most  characteristic 
features  of  this  institution.  We  may  assume,  then,  in  the 
absence  of  evidence  to  the  contrary,  that  African  slavery  had 
such  an  independent  origin  and  that  in  development  its  con 
nection  with  past  as  with  future  foreign  forms  of  slavery  was 
one  of  institutional  similarity  rather  than  of  causal  relation. 
Regardless  of  the  continuity  of  the  idea  of  modern  slavery  in 
Africa,  Europe,  and  America,  it  is  to  be  remembered  that  the 
sanction  and  growth  of  slavery  depended  upon  local  causes, 


The  Slave  Trade  and  Slave  Population.  3 

and  for  this  reason  its  form  and  incidents  materially  differed 
in  these  three  countries  and  indeed  in  different  parts  of  the 
same  country.  Thus  the  patriarchal  institution  of  the  Eng 
lish  colonies  had  little  in  common  with  the  type  of  the  penal 
or  galley  slave  to  be  found  in  the  Spanish  West  Indies. 

The  era  of  awakened  commerce  and  discovery,  that  marked 
the  transition  of  the  mediaeval  into  the  modern  world,  first 
brought  Europeans  into  contact  with  African  slavery  as  an 
already  developed  institution.  Negroes  under  their  tribal 
customs  enslaved  their  kindred  for  debt,  for  crime,  and  as  a 
matter  of  systematic  poor  relief.  So,  too,  the  sparing  of  the 
captive  enemy  to  become  a  slave,  the  most  fertile  and  humane 
source  of  slavery,  was  commonly  practiced  in  native  inter 
tribal  warfare.1  The  Moors,  also,  from  early  times  enslaved 
not  only  the  blacks  around  them  but  also  Christian  whites.2 
It  was  through  the  Moors  that  Europeans  were  first  made 
acquainted  with  the  benefits  to  be  derived  from  the  African 
slave  trade. 

When  in  the  first  half  of  the  fifteenth  century,3  the  ener 
getic  Prince  Henry  of  Portugal,  better  known  as  Prince 
Henry  the  Navigator,  was  actively  pushing  the  course  of 
Portuguese  discovery  along  the  west  coast  of  Africa,  Antony 
Gonzales,  one  of  his  mariners,  captured,  in  1440,  two  Moors 
near  Cape  Bajados.  The  prince  ordered  the  exchange  of  the 
Moors  for  a  proffered  ransom  of  ten  blacks,  and  these  were 
brought  from  the  Rio  del  Oro  to  Lisbon  in  1442.  He  justi 
fied  his  act  on  the  ground  that  the  negroes  might  be  Christian 
ized  but  the  Moors  could  not.  Two  years  later  the  Company 
of  Lagos,  chartered  by  the  king  and  engaged  in  discovery  on 
the  African  coast,  imported  two  hundred  negroes  from  the 
islands  of  Nar  and  Tidar.  Of  these  the  king  received  his 


1  Snelgrave,  Account  of  Guinea,  158. 

*  Helps,  Spanish  Conquest  in  America,  L,  30. 

•  Helps,  ibid.,  I.,  19,  et  seq.\  Brock,  Fa.  Hist.  Soc.  Coll.,  VI.,  2.      This  was 
between  the  years  1419  and  1463. 


4  History  of  Slavery  in  Virginia. 

share,  a  fifth.  They  were  parted  by  lot  irrespective  of  rela 
tionship,  justification  for  the  subjection  of  their  bodies  being 
found  in  a  pious  hope  for  the  salvation  of  their  souls.4 

Such  was  the  beginning  of  the  African  slave  trade  in 
Europe,  an  incident  of  the  commercial  expansion  of  Portu 
gal,  an  accident  in  the  general  progress  of  the  world  to  en 
lightenment,  and  on  the  very  eve  of  the  birth  of  a  new  era. 
Within  a  few  years  thirty-seven  Portuguese  ships  were  en 
gaged  in  the  trade,  and  in  1481  the  king  felt  constrained  to 
add  to  his  distinctions  the  title  "  Lord  of  Guinea."  After 
the  discovery  of  America  and  the  colonization  of  the  Spanish 
West  Indies,  the  inefficiency  of  Indian  slave  labor  in  the 
mines,  and  the  questionable  humanity  of  Las  Casas,  led  to  the 
substitution  of  negro  labor.  Thus  at  the  beginning  of  the 
sixteenth  century,  1502  and  1503,  a  field  was  opened  for  the 
slave  trade  that  even  Portugal  could  not  fill.*  The  traffic 
was  consequently  undertaken  by  Spain  in  1517,  and  by  the 
English  Hawkins  in  1553.6  France  followed  in  1624,  andf 
somewhat  later  Holland,  Denmark,  New  England  and  other 
English  colonies.  All  civilized  nations  with  any  extended 
commerce  were  engaged  in  the  trade.  Slaves  were  sold  into 
Portugal,  Spain,  and  England,  but  particularly  into  the 
American  colonies — continental  and  island — of  Spain,  France, 
England,  Portugal  and  Holland.  The  main  supply  was 
directed  to  the  Spanish  West  Indies,  in  early  days  quite 
naturally  from  their  prior  discovery  and  settlement,  and  in 
later  days  because  importation  was  found  to  be  cheaper  than 
the  breeding  of  slaves. 

The  leader  in  the  trade  and  the  last  to  abandon  it  was 
Great  Britain,  though  she  did  not  regularly  enter  it  until 


4  Helps,  idem,  L,  30-32,  35-40. 

6  Brock,  Va.  Hist.  Soc.  Coll.,  VI.,  2 ;  Edwards,  West  Indies,  II.,  cap.  15 ; 
cf.  ibid.,  II.,  239;  Herrera,  Hisloria  General,  I.,  d.  5,  c.  12. 

6  Edwards,  ibid.,  II.,  240,  241 ;  cf.  Hakluyt,  quoted  by  Cobb,  Slavery,  cxiii, 
in  Brock,  ibid.,  VI.,  2. 


The  Slave  Trade  and  Slave  Population.  5 

comparatively  late.  Queen  Elizabeth  is  said  to  have  been  a 
partner  of  Hawkins  in  several  voyages,  and  to  have  issued 
a  patent  for  the  traffic  in  the  30th  year  of  her  reign.  It  is 
not  certain,  however,  that  any  voyage  was  made  under  her 
patent.7  The  first  attempt  by  England  to  establish  a  sys 
tematic  trade  was  made  November  16,  1618,  when  a  patent 
was  granted  to  Sir  Robert  Rich,  later  Earl  of  Warwick,  and 
others  to  form  a  company  for  the  purpose.  Ships  were  fitted 
out,  but  the  profits  of  the  trade  not  answering  expectations 
the  charter  was  suffered  to  lapse.  A  second  African  Com 
pany  was  chartered  by  Charles  I.  in  1631,  and  a  third  and 
exclusive  Company  was  formed  in  1633,  which  enjoyed  a 
large  trade  for  a  quarter  of  a  century  until  the  abolition  of 
monopolies  under  William  and  Mary  opened  the  trade  to  the 
whole  nation.8  A  fourth  charter  was  granted  in  1670.  Be 
tween  1712  and  1749,  according  to  the  stipulations  of  the 
treaty  of  Utrecht,  the  exclusive  privilege  of  supplying  slaves 
to  the  Spanish  colonies  was  granted  to  the  English  South  Sea 
Company  by  Spain,  half  of  the  stock  of  the  company  being 
held  by  the  British  queen  and  the  Spanish  king,  and  the 
operations  of  the  African  Company  and  private  adventurers 
were  limited  to  the  British  colonies.  In  1749  the  whole  field 
of  the  trade  was  thrown  open  to  Englishmen.  It  was  proba 
bly  at  its  height  just  before  the  war  of  the  American  Revo 
lution,  when  Great  Britain  had  192  ships  employed,  and 
transported  47,000  negroes  annually  to  the  colonies.  Of  the 
6,000,000  to  9,000,000  slaves  imported  up  to  this  time,  Brit 
ish  subjects  are  said  to  have  carried  half.  No  small  portion 
was  carried  by  colonial  ships,  which  had  been  engaged  in  the 
traffic  since  1646.9 


7  Dabney,  Defense  of  Virginia  and  the  South,  27 ;   Census  1860,  Popula 
tion,  XIV. 

8  Dabney,  ibid.,  27;  cf.  Edwards,  West  Indies,  247,  n. 

9  Edwards,  ibid.,  II.,  260 ;  Dabney,  ibid.,  28,  29 ;  Census  1860,  Population, 
XIV.  London,  Liverpool,  and  Bristol,  England  ;  and  Boston  and  Bristol, 
New  England,  were  the  chief  centres  of  the  trade,  but  Charleston,  Baltimore 


6  History  of  Slavery  in  Virginia. 

The  island  colonies  of  England  lying  in  the  path  of  West 
India  commerce  were  naturally  the  first  of  her  foreign  pos 
sessions  to  receive  importations  of  Africans,  and  during  the 
seventeenth  century  they  were  the  chief  regions  outside  of  the 
Spanish  West  Indies  supplied  by  the  slavers.  For  institu 
tional  beginnings  of  the  system  of  American  negro  slavery  we 
are  to  look,  then,  to  the  Bermudas  and  to  Barbadoes  rather 
than  to  Virginia,  Massachusetts,  or  New  York.  How  far  the" 
rules  regulating  the  relation  of  master  and  slave  in  the  Span 
ish  colonies  influenced  the  custom  and  legislation  of  the  Eng 
lish  is  difficult  to  determine.  The  contrast  in  the  two  result 
ing  slave  systems,  if  it  be  a  safe  guide,  suggests  that  if  any 
influence  existed  between  them  it  was  extremely  meagre. 
Some  connection,  however,  is  shown  between  the  systems  of 
the  island  and  mainland  colonies  of  England,  particularly  in 
the  influence  of  the  Bermudas  upon  South  Carolina. 

The  introduction  of  the  negro  as  a  profitable  labor  supply 
in  the  English  as  in  the  Spanish  colonies  was  the  result  of  a 
deliberate  commercial  design.  A  London  mercantile  com 
pany,  the  "  Company  for  the  Summers  Islands,"  sent  in  1616 
one  of  its  trading  ships  to  the  West  Indies  for  products,  such 
as  sugar  cane,  which  it  hoped  to  introduce  into  the  Bermudas, 
and  for  "negroes  to  dive  for  pearles."  The  first  negro,  to 
gether  with  a  single  Indian,  and  West  Indian  products,  were 
brought  back  late  in  the  summer  of  that  year.  The  relation 
of  the  negro  to  the  profitable  cultivation  of  sugar  cane  was 
soon  discovered  and  fresh  importations  were  made.10  In 


and  Norfolk  were  participants.  In  1806,  two  years  before  the  trade  was 
made  illicit,  74,000  negroes  were  being  imported  into  the  West  Indies 
alone.  Britain  led  in  the  trade,  France  was  second,  Portugal  third,  the 
Dutch  next  with  4,000,  and  the  Danes  fifth  with  2,000. 

10Lefroy,  Memorials  of  Bermuda,  L,  115.  In  the  instructions  to  Daniel 
Tucker,  first  Governor  of  Bermuda  under  the  company  (he  got  his  com 
mission  February  15,  1615),  the  order  for  sending  out  such  a  ship  under 
Mr.  Wilmott  is  mentioned.  Late  in  the  summer  of  1616  (cf.  Lefroy,  His 
tory  of  Bermudas,  84,  85,  99,  and  Brown,  Genesis  of  the  United  Slates,  824), 


The  Slave  Trade  and  Slave  Population.  7 

April,  161 8,  Sir  Robert  Rich,  a  prominent  member  of  this 
company  for  the  Summers  Islands  and  of  the  Virginia  Com 
pany,  in  connection  with  Deputy  Governor  Argall,  of  Vir 
ginia,  and  other  associates  sent  a  ship  under  an  old  commis 
sion  of  the  Duke  of  Savoy,  Charles  Emmanuel  L,  to  rove 
in  West  Indian  waters  and  to  prey  upon  Spanish  commerce.11 
This  ship  Argall  in  his  private  capacity  as  part  owner,  fitted 
out  in  Virginia  ostensibly  for  trade  with  the  Indians  on  the 
coast  and  among  the  islands  for  skins  and  goats,  though  his 
real  object  was  piracy  upon  Spanish  commerce.12  On  its 
course  to  the  West  Indies  the  Treasurer  touched  at  the  Ber 
mudas,  and  Deputy  Governor  Kendall,  contrary  to  the  order 
and  advice  of  Governor  Tucker  (who  was  just  leaving  for 
England  and  feared  diplomatic  complications  with  Spain), 
received  the  ship  ostensibly  as  the  Earl  of  Warwick's.  He 
even  provided  it  with  provisions  and  other  necessaries  from 
the  public  store,  on  condition  of  being  admitted  to  a  share 
of  its  plunder  as  a  rover,  a  fact  which  was  now  candidly 
admitted.  The  result  of  its  voyage  was  a  cargo  of  negroes, 
with  which  it  returned  to  Virginia ^in^^e.TalT  of  1619. 
Yearfttey  having  succeeded  Argall  in  the  government  and  the 
Virginians  being  afraid  of  trouble  with  Spain,  the  Treasurer 


the  ship  Edwin,  belonging  to  the  company  (commanded  in  1618  and  1619 
by  Capt.  Bargrave),  which  had  been  on  a  similar  errand,  came  into  the 
Bermudas  bringing  with  the  products  "  one  Indian  and  one  negro,  the  first 
to  arrive." 

11  This  was  the  famous  Treasurer,  which  had  rendered  service  for  many 
years  in  the  settlement  of  Virginia  as  a  transport  ship  for  the  Virginia 
Company,  and  in  voyages  along  the  American  coast  for  discovery,  supplies, 
and  acts  of  hostility  against  French  and  Dutch  settlements.  The  commis 
sion  had  been  issued  in  1616  for  English  aid  in  the  war  between  Savoy  and 
Spain.  Brown,  Genesis  of  the  United  States,  980. 

"Lefroy,  Bermudas,  I.,  133,  134,  147,  148;  cf.  Neil,  Virginia  Carolorum, 
34;  Burk,  Virginia,  I.,  319;  Smith  (Arber),  same  account  in  brief,  667  (or 
in  other  editions,  190) ;  Purchas,  His  Pilgrims,  1734, 1764, 1774, 1798,  1804; 
Massachusetts  Historical  Collections,  4th  S.,  IX.,  4  n.;  Virginia  Company 
Records,}.,  73;  II.,  197,202. 


8  History  of  Slavery  in  Virginia. 

and  its  mission  were  thoroughly  discountenanced  by  the  col 
ony.  The  rover  therefore  sailed  away  secretly  for  the  Ber 
mudas  after  landing  at  Jamestown  a  single  negro,  and  that 
one,  probably,  because  she  was  a  woman.  The  remainder  of 
the  cargo,  twenty-nine  negroes,  were  taken  to  the  -Bermudas 
early  in  September,  161 9.13  Shortly  before  this  a  Dutch 
frigate,  manned  chiefly  with  English,  a  consort  of  the  Treas 
urer,  and  pretending  to  sail  under  a  commission  of  the  Duke 
of  Orange,  but  actually  uncommissioned  and  hence  a  "  pirate," 
had  presented  Governor  Kendall  of  the  Bermudas  with  four 
teen  negroes,  and  other  plunder  captured  in  the  West  Indies, 
in  exchange  for  provisions  and  munitions.  The  exchange 
was  made  on  the  understanding  that  Kendall  was  to  share  in 
the  results  of  its  further  depredations.  This  ship,  before 
coming  to  the  Bermudas,  had  touched  at  Jamestown  "  about 
the  last  of  August,"  1619,  and  sold  the  colonists  twenty 
negroes.14  These  were  the  first  negroes  introduced  into  the 


13  Hotten,  Immigrants,  224 ;  Brown,  Genesis,  886. 

14 Smith,  Works  (Arber),  541 ;  Lefroy,  Bermudas,  144,  145,  155;  Brown, 
Genesis,  968,  980;  Massachusetts  Historical  Society  Collections,  IX.,  5. 
This  matter  has  been  considered  at  greater  length  than  the  subject  seems 
to  justify,  as  much  misapprehension,  involving  misstatement  and  contro 
versy,  has  arisen  from  attempts  to  place  upon  one  nation  or  the  other 
responsibility  for  the  introduction  of  the  first  ne^ro  "slaves"  into  North 
America.  The  Rev.  Edward  D.  Neil  in  his  Virginia  Vetusta,  and  Virginia 
Carolorum,  and  other  writings  on  Virginia  history,  first  tried  to  establish 
the  fact,  in  direct  opposition  to  the  statements  of  contemporaries,  Rolfe  and 
Secretary  John  Pory,  that  the  Treasurer,  "a  Virginia  ship,"  and  not  a 
Dutch  ship,  brought  the  first  twenty  negroes  to  Virginia.  Mr.  Alexander 
Brown  in  his  Genesis  of  the  United  States  (885,  980)  concurs  in  Neil's 
opinion.  Mr.  Philip  Bruce,  the  economic  historian  of  early  Virginia,  in 
an  able  discussion  of  several  pages,  effectually  clears  the  London  Company 
and  the  Treasurer  from  any  responsibility  as  to  the  introduction  of  the  first 
twenty  negroes,  concurring  with  Stith,  Beverley  (51),  Burk  (I.,  21 J),  Camp 
bell  (144,  528),  and  Bancroft  in  an  endorsement  of  Rolfe's  statement  that 
they  were  brought  in  by  a  Dutch  ship.  He  appears  to  me,  however,  to  be  in 
error  in  endorsing  Neil's  statement  that  the  Dutch  vessel  touched  at  the  Ber 
mudas  en  route  to  Virginia  ( Virginia  Velusla,  113;  Economic  History  of  Virginia, 
II.,  67),  and  also  to  confuse  the  negroes  brought  by  that  ship  (Kerbye's 


The  Slave  Trade  and  Slave  Population.  9 

colony  of  Virginia.  In  the  next  four  years  there  seems  to 
have  been  little  importation  of  negroes  into  either  Virginia 
or  the  Bermudas.  English  trading  ships  on  their  way  from 
the  West  Indies  brought  these  no  doubt  more  by  accident 
than  by  design.  Thus  the  James  in  1621,  the  Margaret  and 
John  in  1622,  and  the  Swan  in  1623  each  brought  a  single 
negro  into  Virginia.  In  1625,  more  than  five  years  after  the 
first  introduction  of  negroes  into  Virginia,  when  the  white 
population  was  about  2,500,  there  were  but  twenty-three 
negroes  in  the  colony,  the  same  number  as  in  1623,  one  child 
having  been  born  and  one  negro  having  died  ;  so  for  more 
than  two  years  no  importation  seems  to  have  been  made. 

Importation  remained  of  this  occasional  nature  well  through 
the  first  half  of  the  seventeenth  century.  Thirty  years  after 
the  first  introduction  of  negroes  only  300  were  to  be  found  in 


frigate)  to  the  Bermudas  with  those  landed  by  the  Treasurer  subsequently. 
Stith  (143.  153;  cf.  Colonial  Records  of  Virginia,  pp.  76,77)  thinks  Lord 
Delaware  was  partial  owner  of  the  Treasurer,  and  tries  to  cloak  Argall  for 
manning  and  victualling  her  under  Delaware's  orders.  He  is  probably 
guilty  of  anachronism.  Beverly  and  Burk  mistake  the  date  as  1620  instead 
of  1619,  and  Williams,  the  negro  historian  of  his  race,  puts  it  in  1618 
(History  of  the  Negro  Race,  L,  117).  The  latter  makes  some  unfortunate 
mistakes,  confusing  the  Governor  of  Bermudas  with  the  Governor  of  Vir 
ginia  (Hem,  I.,  118) ;  the  fourteen  negroes  of  the  Bermudas  with  the  twenty 
of  Virginia;  and  he  suggests  that  Smith  (i.  e.,  Rolfe)  meant  to  say  tome- 
thing  very  different  from  what  he  did  say, — that  when  he  said  the  negroes 
were  sold  by  a  Dutch  man-of-war  "about  the  last  of  August,"  1619,  he  in 
tended  to  say  "about  the  end  of  last  August"  (Idem,  I.,  116;  Smith,  II., 
37).  To  make  assurance  doubly  sure  he  contradicts  himself  by  saying  that 
the  Treasurer  brought  the  first  negroes  in  1618,  but  the  Dutch  ship  landed 
her  cargo  in  1619.  Yet  he  correctly  identifies  the  Dutch  ship  with  the 
"pirate  frigate"  of  Kirbye.  This  is  a  fair  illustration  of  what  confusion  a 
very  small  matter  can  occasion.  The  statements  of  the  authorities,  Rolfe 
and  Pory,  the  records  of  the  Virginia  Company,  and  Smith  in  his  History 
of  Virginia,  and  again  in  his  Bermudas  (if  he  be  the  author  of  the  MSS. 
edited  by  Lefroy),  are  difficult  to  reconcile  fully,  particularly  as  the  dates 
are  given  in  general  terms  and  not  explicitly,  and  as  the  matter  came  into 
controversy  in  1623.  Smith's  account  seems  to  show  partisanship  for  War 
wick,  that  of  the  Virginia  Company  for  Kendall  (see  I.,  540). 


10  History  of  Slavery  in  Virginia. 

Virginia,  a  number  of  whom  were  no  doubt  the  result  of 
natural  increase.  But  by  1659  the  value  of  negro  labor  even 
amongst  the  preponderating  white  servants  was  beginning  to 
be  realized,  and  the  assembly  legislated  in  favor  of  its  impor 
tation.  The  allowance  of  a  head  right  for  the  negro  after 
1635  as  for  any  other  immigrant,  and  the  scarcity  of  labor  in 
the  rapid  colonial  expansion,  account  for  the  rise  of  the  new 
demand.  Some  Virginia  planters  obtained  large  estates 
through  head  rights  for  imported  negroes  and  whites.  These 
facts  also  help  to  explain  the  enslavement  of  the  negro  which 
followed  in  1661,  and  the  formation  by  Englishmen  of  a 
third  and  exclusive  company  for  the  slave  trade  in  1662. 

It  is  to  the  operations  of  this  company  and  to  individual 
English  traders  that  Virginia  was  indebted  for  the  most  of 
her  slaves.  From  1664  to  1671  several  shiploads  of  negroes 
were  brought  in,  but  servants  continued  to  be  imported  at  the 
greater  rate  of  1,500  a  year,  and  in  1671  there  were  6,000 
servants  to  2,000  slaves  in  Virginia.15  By  1.683  the  number 
of  servants  had  doubled,  while  that  of  the  slaves  had  increased 
by  only  one  third.16  From  this  time  forth  servitude  gave  way 
before  slavery,  which  was  forced  on  the  colony  in  the'  large 
importation  of  negroes  by  the  Royal  African  Company  under 
its  exclusive  charter.  It  was  the  policy  of  the  king,  and  of 
the  Duke  of  York,  who  stood  at  the  head  of  the  Company,  to 
hasten  the  adoption  of  slavery  by  enactments  cutting  off  the 
supply  of  indented  servants,  at  the  same  time  that  large 
importations  of  slaves  were  made  by  their  agents.  The  laws 
of  1676  and  1682  which  legalized  Indian  slavery  cooperated 
still  further  to  increase  the  slave  population.  In  1698  the 
African  trade  was  thrown  open  to  separate  traders.  An 
active  competition  at  once  sprang  up  with  the  African  Com- 


15  Hening,  Statutes  at  Large,  II.,  515 ;  Force,  Tracts,  III.,  VIII. ;   Bruce, 
Economic  History  of  Virginia,  II.,  75,  76,  78. 

16  Doyle,  Virginia  et  cet.,  383. 


The  Slave  Trade  and  Slave  Population.  11 

pany,  the  separate  traders  importing  large  numbers  of  negroes 
and  attempting  to  undersell  the  Company. 

With  these  importations  the  colonists  seemed  to  realize  the 
dangers  involved  in  African  slavery.  Though  in  1659  they 
had  given  practical  encouragement  to  the  importation  of 
negroes  by  the  Dutch,  they  now  felt  constrained  to  discourage 
the  increase  of  a  dangerous  population  by  subjecting  negroes 
and  alien  servants  to  discriminating  duties.17  Such  a  duty 
was  laid  by  an  act  of  1699  for  three  years  and  was  continued 
in  1701.  That  this  was  not  purely  a  revenue  act  is  shown 
by  the  fact  that  a  rebate  of  three-fourths  of  the  duty  was 
given  when  the  negroes  were  transported  out  of  the  Dominion 
within  six  weeks.  The  duty  was  continued  by  the  acts  of 
1704  and  1705,  in  which  it  was  laid  simply  upon  "  negroes 
or  other  slaves."  The  excuse  of  revenue,  it  is  true,  was 
alleged  and  brief  time  limitations  were  given  to  the  acts,  but 
these  limitations  were  designed  to  procure  England's  confirma 
tion  of  the  enactments.  When  large  and  successive  increases 
were  made,  the  slave  traders  readily  saw  that  the  intent  was  to 
lay  prohibitive  duties.  They  consequently  protested  vigor 
ously,  and  secured  the  withholding  of  the  king's  assent  to  as 
many  as  thirty-three  different  acts  passed  by  the  Virginia 
Assembly  prior  to  1772  to  discourage  the  slave  trade.18 

The  importation  of  negroes  remained  practically  unchecked, 
however,  and  the  only  advantage  Virginia  reaped  from  such 
of  these  acts  as  became  laws  was  a  large  revenue  for  her 
public  works.  In  1705  negroes  to  the  number  of  1,800  were 
brought  in,  and  in  1708  there  were  in  the  colony  12,000 
negro  tithables  as  compared  with  18,000  white.  Projected 
insurrections  of  negroes  in  1710,  1722,  and  1730  bear  witness 
to  their  alarming  increase,  and  by  the  middle  of  the  century 


17  Herring,  III.,  193.     Negroes  were  taxed  20  s.  and  alien  servants  15  s.  a 
head. 

18  Hening,  I.,  540 ;  III.,  193,  213, 225,  229,  233 ;  Tucker,  Blackstone,  I.,  51, 
append. 


12  History  of  Slavery  in  Virginia. 

the  blacks  were  almost  as  numerous  as  the  whites.  The 
stipulations  of  the  treaty  of  Utrecht  which  excluded  the 
operations  of  the  English  traders  from  the  Spanish-American 
colonies  between  1712  and  1749  were  largely  responsible  for 
the  rapid  increase  of  negroes  in  the  English  colonies.19  In 
1715  there  were  23,000  negroes  in  a  white  population  of 
72,500  in  Virginia,  and  by  1756  the  negroes  numbered 
120,156  and  the  whites  but  173,316.  Thirty-eight  of  the 
forty-nine  counties  had  more  negro  than  white  tithables,  and 
eleven  of  the  counties  had  a  negro  population  varying  from 
one-fourth  to  one-half  more  than  the  white.  In  twenty 
counties  the  white  and  the  black  populations  were  nearly  equal. 
It  was  only  in  the  new  counties  on  the  frontier  that  negroes 
were  so  few 20  as  not  to  cause  serious  alarm. 

Regardless  of  increasing  duties,  the  large  shipments  of 
the  African  Company  and  of  traders  in  England  and  the 
colonies  continued.  The  main  centres  of  the  traffic  in  England 
were  London,  Bristol,  and  Liverpool ;  in  New  England, 
Boston  and  Bristol,  and  in  the  South,  Charleston,  South  Caro 
lina.  In  1726  the  three  English  cities  alone  had  171  ships 
engaged  in  the  trade,  and  its  profits  were  said  to  warrant  the 
employment  of  a  thousand  more,  though  such  a  number  was 
probably  never  reached  as  far  as  England  alone  was  con 
cerned.  From  1804  to  1807  Great  Britain  had  70  ships  in 
the  trade;  Charleston,  South  Carolina,  61 ;  Rhode  Island,  59; 
Baltimore,  4;  Norfolk,  2;  and  Boston  1. 

But  the  "  separate "  traders  were  making  the  largest  im 
portations.  They  sent  50,000  annually  to  all  the  colonies, 
while  the  African  Company  sent  but  5,400,  and  for  several 
years  fewer  of  these  had  come  to  Virginia  than  to  North 
Carolina  and  Maryland.  In  fact,  Virginia  was  so  well  sup 
plied  with  negroes  at  this  time  that  although  the  profits  of 


19  Virginia  MSS.,  B.  E.  0.,  V.  pt.  2,  p.  352;  II.,  pt.  1.,  211 ;  ibid.,  Novem 
ber  27,  1708 ;  Calendar  Virginia  State  Papers,  I.,  129,  130. 
*°Dinwiddie  Papers,  II.,  345,  474. 


The  Slave  Trade  and  Slave  Population.  13 

their  labor  were  greater  than  in  some  colonies  there  seems  to 
have  been  a  temporary  falling  off  in  a  supply21  that  had 
tended  constantly  to  increase  since  the  shipments  of  the 
African  Company  had  begun.  In  1676  the  Company  had 
sent  650  negroes  to  Virginia,  who  were  sold  at  an  average  of 
£18  a  head.22  The  price  rose  rapidly  with  enlarged  demand. 
Regardless  of  the  fact  that  Governor  Nicholson,  with  the 
approval  of  the  Lords  of  Trade,  had  in  1699  discontinued 
the  land  grants  given  for  importation,  prices  reached  a  maxi 
mum  of  £28  and  £35  a  head  in  the  following  year.  There 
were  actually  as  many  buyers,  it  was  said,  as  negroes  offered 
for  sale.  The  Governor  thought  that  even  2,000  negroes 
would  meet  with  ready  sale,  arid  the  traders  redoubled  their 
efforts  at  the  very  time  that  the  more  thoughtful  colonists, 
now  beginning  to  realize  the  dangers  of  an  African  popula 
tion,  were  attempting  to  restrict  importations.  From  1710 
to  1718,  notwithstanding  the  fact  that  a  duty  of  £5  a  head 
was  exacted,  importation  was  not  effectively  checked  and  the 
revenue  collections  from  slaves  amounted  to  $15,000.  By 
1723  negroes  were  coming  at  the  rate  of  1,500  or  1,600  a 
year.23  This  number  was  still  further  increased  during  the 
succeeding  years  in  which  a  duty  was  not  laid  or  was  ineffec 
tive  through  repeals  of  the  colonial  revenue  acts  in  England. 
In  1723,  for  the  first  time,  the  English  slave  traders  in 
general  seemed  to  awake  to  the  real  intent  of  the  Virginia 
Assembly  in  the  professed  revenue  duties  laid  upon  liquors 
and  slaves.  The  enlarged  trade  that  they  had  enjoyed  since 
the  expiration  of  the  £5  duty  in  1718  showed  them  the  loss 
they  might  expect  to  sustain  with  a  renewed  duty.  They 
made  a  combined  effort,  consequently,  for  the  repeal  of  a  law 


81  Virginia  MSS.,  B.  R.  O.,  1726,  April  2.  In  North  Carolina  negroes  were 
coming  at  the  rate  of  1,000  a  year  and  many  brought  better  prices  than  in 
Virginia  and  Maryland.  DeBow,  Resources  of  the  South,  I.,  341. 

21  Calendar  of  English  State  Papers,  Colonial,  444,  552. 

28  Virginia  MSS.,  £.  R.  0.,  II.,  pt.  1,  111,  211,  297,  January  17,  1723. 


14  History  of  Slavery  in  Virginia. 

passed  by  the  Assembly  in  1723,  though  the  duty  laid  was 
but  40  s.  which  was  less  than  half  the  former  duty.  They 
were  fortunate  in  being  able  to  attack  the  law  on  technical  as 
well  as  on  commercial  grounds,  and  the  complete  success  of 
this  first  attempt  encouraged  repeated  efforts,  most  of  which 
were  effective,  against  succeeding  laws  of  a  similar  nature  that 
the  Assembly  was  brave  enough  to  pass. 

In  this  legislation,  as  well  as  in  the  candid  statements  of 
representative  Virginians,  we  find  most  conclusive  proofs  of 
the  early  hostile  attitude  of  the  colonists  toward  a,  negro 
population,  as  well  as  of  Their  pbwerlessness  to  shape  their 
economic  and  social  development  where  it  conflicted  with  the 
general  plan  of  English  commercial  policy.  No  colony  made  \ 
a  more  strenuous  and  prolonged  effort  to  prevent  the  imposi 
tion  of  negro  slavery  upon  it,  and  no  State  a  more  earnest 
attempt  to  alleviate  or  rid  itself  of  that  burden  than  Virginia. 
Both  efforts  failed  from  inexorable  political  and  economic  con 
ditions  over  which  the  Virginians  had  but  little  control. 
The  sincerity  of  their  desire  is,  however,  evinced  from  the 
extreme  measures  resorted  to  to  gain  their  end.  The  colon 
ists  justified  themselves,  in  view  of  the  unjust  methods  of 
the  Mother  Country,  in  employing  the  arts  of  diplomatic 
deception,  and  political  pressure,  whenever  emergencies  arose 
that  gave  them  an  advantage.  When  such  means  failed  they 
resorted  to  humble  pleading,  and  finally  to  outspoken  con 
demnation  of  the  English  policy  and  to  threatened  rebellion. 

By  skilful  wording  of  preambles  and  brief  limitations  to 
the  acts  imposing  duties,  and  by  judicious  expenditure  upon 
public  works  of  the  revenue  raised,  the  colonists  had  partially 
concealed  the  true  intent  of  the  acts  during  the  first  ten  years. 
The  Assembly  of  1710  became  bolder,  and,  pressed  by  the 
exigencies  of  the  growing  over-production  and  low  prices  of 
tobacco  and  by  the  general  indebtedness  for  the  increasing 
purchases  of  negroes,  advanced  the  duty  on  negro  slaves  to 
£5,  while  it  left  the  tariff  on  liquors  and  on  Indians  as 
before.  Governor  Spotswood  was  not  slow  to  see  that  the 


The  Slave  Trade  and  Slave  Population.  15 

design  was  to  discourage  the  importation  of  negro  slaves,  and 
he  remonstrated  with  the  members  of  the  Assembly,  urging 
them  to  abandon  the  bill  or  to  lower  the  duty.  The  argu 
ments  of  the  colonists,  however,  were  unanswerable,  and  the 
Assembly  finally  refused  to  yield.  As  Spotswood  was  un 
willing  to  oppose  "  the  general  inclination  of  the  country  "  he 
allowed  the  act  to  pass  and  made  such  apologies  to  the 
authorities  in  England  as  he  hoped  would  prevent  opposition 
from  the  slave  traders.  He  alleged  that  the  planters  were 
practically  bankrupt  and  could  not  or  would  not  purchase  any 
slaves  until  the  price  of  tobacco  improved,  which  was  not 
reasonably  to  be  expected  within  the  three  years  limitation  of 
the  act.24 


84 Spotswood  Letters,  I.,  52;  Hening,  III.,  482.  Previous  to  this,  five  acts 
laying  duties  are  extant.  The  act  of  1699  imposed  a  duty  of  5  s.  more  upon 
slaves  than  servants,  and  provision  for  strict  enforcement  was  made  under 
heavy  penalty.  The  necessity  of  replacing  the  Statehouse  of  the  colony, 
lately  destroyed  by  fire,  and  the  desire  to  avoid  an  extra  poll  tax  was  the 
excuse  alleged.  If  revenue  had  been  the  sole  object,  however,  English  and 
not  alien  servants,  who  were  few  in  number,  would  have  been  included  in 
the  act.  Its  limitation  was  three  years,  but  before  expiration  in  1701  it  was 
continued  to  December  25,  1703,  and  a  drawback  of  three-fourths  of  the 
duty  was  allowed  on  slaves  transported  out  of  the  colony  within  six  weeks. 
A  committee  for  the  fifth  revisal  of  the  laws  had  been  appointed  in  1699, 
and  it  was  expected  that  they  would  report  before  the  expiration  of  this 
act.  The  report  was  delayed,  however,  until  1705,  so  that  in  April,  1704, 
an  act  for  one  year  had  to  be  passed  reviving  the  duty,  which  had  not  been 
collected  for  the  four  months  intervening.  In  September,  1704,  the  Council 
of  Virginia  imposed  an  extra  duty  of  2  s.  per  slave  for  the  alleged  purpose 
of  rebuilding  William  and  Mary  College,  which  had  been  burned.  The 
revisal  of  1705  continued  the  duty  for  two  years,  taking  precaution  to  in 
clude  all  slaves  sent  in  from  North  Carolina  and  Maryland,  by  which  means 
importers  had  begun  to  evade  duties.  This  act  probably  expired  by  limita 
tion  May  25,  1707,  after  raising  a  revenue  of  £4,000,  of  which  £3,000  was 
expended  in  building  a  governor's  house.  No  Acts  of  Assembly  between 
1706  and  1710  are  extant,  so  that  it  is  impossible  to  say  whether  the  duty 
was  continued  or  not.  But  a  special  revenue  act  for  the  support  of  the 
government,  laying  a  duty  of  6  s.  per  poll  on  all  servants  and  slaves  im 
ported,  was  in  effect  from  1705  to  June  22,  1708,  when  it  was  repealed  by 
proclamation.  In  1710  this  act  was  also  revived. 


16  History  of  Slavery  in  Virginia. 

This  high  duty  was  continued  by  two  other  acts,  1712  and 
1714,  until  the  year  1718.  Spots  wood  allowed  these  also  to 
pass.  He  explained  that  they  were  necessary  to  keep  up 
public  credit  and  to  pay  the  debts  "already  contracted;"  but 
it  is  evident  that  his  statement  was  made  in  fear  that  their 
provisions  might  prove  disagreeable  to  England.25  It  was 
quickly  shown  that  his  fear  was  well  grounded,  but  the 
objections  raised  in  England  were  not  serious  enough  to  with 
stand  the  arguments  of  Spotswood  backed  by  the  actual  bene 
fits  the  colony  could  show  for  her  judicious  expenditure  of  the 
large  revenue  raised.26  From  1718  until  1723,  for  some  rea 
son  that  does  not  fully  appear,  a  duty  was  not  collected.  It 
would  seem  from  a  remark  of  Thomas  Jefferson's  that  the 
Assembly  was  either  careless  or  was  influenced  by  some 
peculiar  circumstance — probably  pressure  from  England — 
that  demanded  the  repeal  of  the  duty.  At  any  rate,  this 
"inconsiderate"  action,  as  Jefferson  termed  it,  met  with  a 
"joyful  sanction"  from  the  English  Crown,  which  from  that 
time  forth  resented  all  attempts  to  renew  a  duty.27  A  duty 
of  40  s.  laid  by  the  act  of  May,  1723,  was  effective  until  Octo 
ber  27,  1724,  when  it  was  repealed  by  royal  proclamation. 
The  now  organized  resistance  of  the  Bristol,  Liverpool  and 
London  traders,  led  by  the  Iloyal  African  Company,  had 
little  difficulty  in  securing  this  repeal. 


KSpolswood  Letters,  II.,  323;  Virginia  State  Papers,  I.,  206.  The  benefits 
from  this  revenue  were,  according  to  Spotswood  ;  "  finishing  a  house  for  the 
governor,  which  was  little  more  than  begun  when  the  duty  was  laid,  assist 
ing  North  Carolina  with  the  Indian  wars,  fortifying  our  own  frontiers, 
building  a  public  magazine  and  a  prison,  contributing  towards  the  building 
of  the  church  at  Williamsburg  and  paying  for  the  suppression  of  pyrats." 
An  Emergency  Fund  of  £17,872  still  remained  from  the  levies  of  the  col 
ony.  Hening,  III.,  113,  192,  193,  229,  233,  346,  482,  492;  Campbell,  Vir 
ginia,  37 b' ;  Calendar  Virginia  State  Papers,  I,  123.  With  the  exception  of 
four  months  then,  a  continuous  duty  had  been  exacted  on  slaves  from  April 
27,  1699,  to  June  22,  1708,  a  period  of  more  than  nine  years. 

™  Spotswood  Letters,  I.,  52,  72;  II.,  52,  97;  Hening,  IV.,  30. 

27  Jefferson,  Notes  on  Virginia,  146. 


The  Slave  Trade  and  Slave  Population.  17 

But  the  brief  enforcement  of  this  act  proved  a  disaster  to 
the  colony.  The  colonists  had  made  the  mistake,  in  their 
earnest  desire  to  check  the  trade  at  once,  of  not  inserting  a 
clause  suspending  the  operation  of  the  act  until  the  royal  will 
was  known.  This  was  so  offensive  in  England  that  the 
Virginia  Governor  was  instructed  not  to  assent  to  any  future 
act  of  the  kind  unless  the  suspensory  clause  were  added,  and 
the  act  of  1723  was  forthwith  condemned  on  this  excuse  and 
because  it  was  supposed  to  contract  British  trade  by  levying 
the  tax  upon  the  importer.  The  real  reasons  for  repeal  were 
the  royal  interests  in  the  slave  trade  and  the  alleged  fact  that 
the  duties  were  intended  to  be  prohibitive,  and  actually  did 
restrict  importations.28  The  contention  as  to  whether  the 
duty  was  paid  by  the  importer  or  by  the  buyer,  which  arose 
between  the  traders  and  the  Virginia  agents,  was  complicated 
by  an  opinion  rendered  to  the  Crown  that  the  duty  was  really 
paid  by  the  buyer  in  the  increased  price  paid  for  his  labor, 
and  that  the  increased  cost  of  production  was  added  to  the 
price  of  the  products  sold  in  England,  and  thus  the  tax  was 
ultimately  transferred  to  the  English  consumer.29  This  tax 
on  trade  and  lessening  of  the  royal  revenues  the  Crown  had 
no  disposition  to  allow  even  in  the  interests  of  its  colonists. 
For  nine  years  all  attempts  of  the  Virginia  Assembly  to 
renew  the  duty  on  negroes  were  futile;  though,  according  to 
Jefferson  and  Colonel  Peter  Fontaine,  the  attempts  were 
constant.  Royal  assent  could  not  be  obtained  even  to  acts 
containing  the  flattering  suspensory  clause.30 


28  Hening,  IV.,  119  ;  Virginia  Stale  Papers,  I.,  206,  207.     Both  the  "  sepa 
rate"  traders  and  the  Company  urged  that  this  duty,  though  only  40  s.  a 
head,  was  prohibitive,  as  15  per  cent,  of  the  negroes  imported  were  not 
worth  £5  each,  while  on  the  coast  of  Africa  they  cost  the  importer  £16,  so 
that  the  duty  was  practically  from  33  to  50  per  cent.     Virginia  J\1SS.,  B. 
JR.  0.,  II.,  1723,  September  23  to  January  17.     The  Virginia  agent  showed 
that  the  duty  was  paid  by  the  buyer. 

29  Virginia  MSS.,  B.  R.  O.,  1729,  October  14. 

30Hening,  IV.,  February,  1727  ;  Jefferson,  Notes,  146  ;  Fontaine,  Huguenot 
Family,  352.     Thus  the  act  of  1727  was  revoked  by  the  king,  and  in  1729 

2 


18  History  of  Slavery  in  Virginia. 

In  1732  circumstances  arose  that  enabled  the  colony  to 
obtain  a  5  per  cent,  ad  valorem  duty  on  negroes,  to  be  paid 
by  the  buyer.  Both  of  these  points,  the  duty  on  the  gross 
sale  and  payment  by  the  purchaser,  were  concessions  to  the 
contentions  of  the  Royal  African  Company,  and  the  Assembly 
further  abased  itself  by  "most  humbly  beseeching"  the 
Crown  that  the  law  be  enacted31  for  the  absolutely  necessary 
revenues  of  the  government,  as  the  people  would  not  submit 
to  a  direct  tax  by  the  poll.  Other  considerations  fortunately 
were  present  to  influence  a  favorable  decision.  The  Royal 
African  Company  in  1730  had  succeeded  in  extorting  a  bonus 
from  Parliament  which  was  far  more  valuable  than  its  trade 
in  Virginia,  and  the  Crown's  immediate  interest  in  the  duties 
was  lessened.  To  protect  the  exclusive  Company  Parliament 
had  laid  a  tax  on  the  importations  of  other  traders,  when  the 
trade  was  opened  to  competition  in  1698.  The  duties  in 
Virginia  had  seemed  not  only  to  lower  the  profits  of  the 
African  Company  but  to  limit  the  receipts  of  the  tax  due 
from  these  traders,  and  two  additional  reasons  had  thus  been 
afforded  for  repeal  of  the  Virginia  laws.  In  1730,  however, 
the  African  Company,  which  had  not  proven  a  successful 
competitor  with  the  other  traders,  obtained  a  grant  of 
£10,000 32  a  year  for  their  previous  loss  for  nearly  twenty 
years,  in  lieu  of  the  duty  paid  by  the  traders,  which  was  now 
abolished.  This  made  the  Company  independent  of  the  Vir 
ginia  trade,  and  it  no  longer  had  reason  to  oppose  duties  on 
a  business  from  which  it  was  practically  excluded.  Another 


the  Board  of  Trade  instructed  the  colony  to  substitute  other  duties  for  those 
on  negroes.  In  1730  the  colonists  begged  to  be  allowed  to  lay  a  duty  on 
liquors,  as  the  people  would  not  submit  to  a  poll-tax.  This  was  refused 
then,  but  was  finally  conceded  in  1732. 

81  In  no  other  bills  except  these  for  duties  on  liquor  and  slaves  do  such 
clauses  of  appeal  occur  as;  "We  most  humbly  beseech  your  Majesty"  in 
your  "great  wisdom,"  etc.,  etc. 

32  Brock,  Virginia  Historical  Society  Collections,  VII.,  prefatory  note  to  fourth 
exclusive  charter  of  the  Royal  African  Company. 


The  Slave  Trade  and  Slave  Population.  19 

reason  which  tended  to  change  the  policy  of  the  Crown,  was 
its  anxiety  to  conciliate  the  colonists  as  much  as  possible  in 
order  to  enforce  its  scheme  of  commercial  monopoly  and  to 
crush  out  incipient  colonial  manufactures,  which  at  this  time 
were  giving  fresh  alarm.33  It  was  essential  to  this  scheme 
that  the  agricultural  colonies,  at  least,  chief  amongst  which 
was  Virginia,  be  exclusively  confined  to  the  economic  line 
marked  out  by  the  interests  of  the  home  country. 

In  the  light  of  these  facts  we  can  understand  the  permission 
to  revive  duties  on  slaves  in  1 732  and  their  continuance  by 
successive  acts  practically  unbroken  until  the  Revolution. 
From  1732  to  1778,  when  the  importation  of  slaves  was  pro 
hibited  by  the  State  of  Virginia,  duties,  constantly  increasing 
in  amount,  were  effective,  except  for  a  brief  period  of  about 
six  months  after  August  1,  1751,  when  the  act  of  1732, 
which  had  been  continued  by  amendments,  was  inadvertently 
allowed  to  expire.34  The  Assembly  generally  took  especial 
care  to  avoid  tuch  lapse.  The  acts  had  usually  a  duration 
limited  to  four  years,  and  two  years  and  sometimes  longer 
before  they  expired  they  were  continued  by  other  acts  in  order 
that  no  possible  hitch  might  come  from  delay  of  the  royal 
assent  and  lapse  of  the  duty.  Every  effort  possible  was 
made  to  discourage  slave  importations.  A  drawback  of  the 
full  amount  of  the  duty  was  now  allowed  when  the  slave  was 
exported  out  of  the  colony  within  twelve  months,  and  this 
exportation  was  not  to  be  to  North  Carolina,  as  it  was  too 
easy  for  the  slaves  to  be  smuggled  back  from  there.  The 
strictest  regulations  were  made  for  the  prompt  collection  of 
the  duty,  and  the  fact  that  it  was  laid  on  the  buyer,  would  in 
itself,  it  was  hoped,  discourage  purchases.  Every  attempted 
evasion  by  factors,  traders  and  shipmasters  was  met  as  it 
aro-e  and  carefully  provided  against  for  the  future ;  even  the 


33  Rabbeno,  American  Commercial  Policy,  20. 

3*  Hening,  IV.,  317,  320,  394,  474 ;  V.,  28.     See  acts  of  1733,  1734,  1738, 
1740,  1742,  1745,  1747  and  special  acts  of  1736,  1740. 


20  History  of  Slavery  in  Virginia. 

privileged  slaves  of  shipmasters  though  unsold  were  held 
liable  to  the  duty.35 

Whenever  an  occasion  arose  in  which  England  was  com 
pelled  to  ask  aid  of  her  colony,  such  as  troubles  with  the 
Spanish,  French,  or  Indians,  it  was  immediately  seized  upon 
as  a  pretext  by  the  Assembly  to  increase  duties  or  to  levy 
extra  tariffs.  Thus  when  the  cooperation  of  colonial  troops 
was  demanded  in  ]  740  for  the  expedition  against  Carthagena 
an  addition  of  5  per  cent,  ad  valorem  over  the  existing  5  per 
cent,  duty  was  exacted  for  the  colonial  expenses.  This  duty 
was  significantly  laid  upon  slaves  and  not  upon  liquors.  The 
pressure  was  administered,  however,  by  the  Assembly  in  the 
form  of  a  "  most  humble  "  petition  to  the  Crown.  Again,  in 
1752,  when  it  was  desired  to  renew  the  lapsed  duties,  the 
pretext  offered  was  the  public  debts  of  the  French  war ;  and 
next  the  defense  of  the  western  frontier  against  the  encroach 
ments  of  the  French  was  used  for  the  further  addition  of  a  5 
per  cent,  duty  in  1754  and  of  a  10  per  cent,  duty  in  1755, 
each  for  three  years.36  This  latter  duty  was  continued  in 
1757  for  seven  years  longer  as  an  "  aid  to  His  Majesty"  in 
defense  of  the  colony.  So  for  fully  five  years,  May,  1755,  to 
May,  1760,  the  tax  of  a  20  per  cent,  ad  valorem  duty,  and  for 
three  years  25  per  cent.,  was  enforced  upon  slaves.  This  slave 
impost,  together  with  a  discriminating  tax  of  4  s.  6  d.  on  negro 
tithables,  2  s.  more  than  on  white,  was  practically  prohibitive 
of  the  slave  trade,  and,  consequently,  on  the  ground  that 
importation  was  checked  and  revenue  defeated,  the  Crown 
again  demanded  the  repeal  of  the  two  exceptional  10  per  cent. 
duties.37 

England  was  now  in  a  position  to  dispense  with  colonial 


85  One  reason  why  the  payment  by  buyers  had  been  opposed  in  Virginia 
was  on  account  of  the  trouble  of  collection,  which  was  overcome  with 
difficulty.  Hening,  IV.,  474;  V.,  28,  30. 

36Hening,  V.,  92,  112;  VI.,  219,  220,  355;  Dinwiddie  Papers,  II.,  86. 

"Ibid.,  VI.,  355,  419,  466,  467  ;  VII.,  363,  383,  640.  The  repeals  were 
made  in  1760  and  1761. 


The  Slave  Trade  and  Slave  Population.  21 

aid  and  to  give  attention  to  her  trade  interests.  The  French 
war  was  practically  ended.  Fort  Duquesue  had  fallen  in 
1758  and  Quebec  in  1759.  The  Virginians  appreciated  the 
situation,  submitted  to  the  repeal,  and  contented  themselves 
with  continuing  a  5  per  cent,  duty  by  successive  acts  until  the 
workings  of  Grenville's  policy  had  produced  such  a  general 
state  of  resistance  in  the  colonies  that  Virginia  could  boldly 
again  apply  pressure  and  revive  exceptional  duties.38 

Though  the  colony  could  not  protect  itself  from  English 
traders,  it  was  allowed  to  do  so  from  American  traders,  who 
operated  from  the  West  Indies  or  from  Maryland  and  North 
Carolina,  as  the  restriction  of  these  was  wholly  beneficial  to 
the  English  trade.  A  heavy  duty  of  20  per  cent,  ad  valorem 
was  consequently  permitted  on  these  importations  from  1759 
to  1773.39  In  1766  the  Assembly  again  became  bold  enough 
to  lay  a  duty  of  10  per  cent,  for  seven  years  in  addition  to 
that  of  5  per  cent,  which  was  continued  for  three  years,  for 
the  avowed  purpose  of  lessening  the  poll  tax  merely.  In 
1769  this  additional  duty  was  continued  until  1776,  because, 
said  the  Assembly,  "  it  was  found  expedient,"  and  a  further 
5  per  cent,  duty  was  also  revived.  In  1772  these  duties  were 
all  continued  until  the  20th  of  April,  1778,  so  that  the  effec 
tive  duty  on  slaves  from  the  African  coast,  Maryland,  and 
North  Carolina  was  20  per  cent.,  while  on  West  India  slaves 
it  was  as  much  as  40  per  cent  of  their  value.40 

38  A  letter  from  Colonel  Peter  Fontaine  to  his  brother,  in  1757,  well  illus 
trates  the  attitude  of  the  English  to  the  imposition  of  duties,  "which,"  he 
says,  "they  wink  at  while  we  are  in  danger  of  being  torn  from  them,  but 
we  dare  not  do  it  in  time  of  peace."  "  Our  Assembly,"  he  continues,  "  fore 
seeing  the  evil  consequences  of  importing  such  numbers  [of  slaves]  hath 
often  attempted  to  lay  a  duty  upon  them  which  would  amount  to  a  prohi 
bition,  such  as  £10  or  £20  a  head,  but  no  governor  dare  pass  such  a  law, 
having  instructions  to  the  contrary  from  the  Board  of  Trade  at  home.  This 
plainly  shows  the  African  hath  the  advantage  of  the  colonies." 

39Hening,  VIL,  338,  340 ;  VIIL,  192,  337.  This  duty  was  imposed  by 
acts  of  1759,  1766,  and  1769. 

40Hening,  VIII.,  191,  237,  337,  531,  532;  cf.  Tucker,  Blackstone,  I.,  51. 


22  History  of  Slavery  in  Virginia. 

In  the  language  of  these  enactments  we  find  a  growing 
spirit  of  independence  on  the  part  of  the  Assembly  and  a  dis 
position  to  admit  candidly,  now  that  fear  of  coercion  was 
lessened,  its  intent  to  prohibit  the  slave  trade.  The  duties 
did  not  however,  effectively  prohibit,  and  in  1772,  after  two 
months  trial  of  the  combined  acts,  the  House  of  Burgesses 
was  forced  to  address  a  direct  petition  to  the  Throne.  The 
language  of  this  petition  is  so  significantly  prophetic  that  it 
should  be  briefly  quoted.  "We  implore,"  it  says,  "your 
Majesty's  paternal  assistance  in  averting  a  calamity  of  a  most 
alarming  nature.  The  importation  of  slaves  into  the  colonies 
from  the  coast  of  Africa  hath  long  been  considered  as  a  trade 
of  great  inhumanity,  and  under  its  present  encouragement  we 
have  too  much  reason  to  fear  will  endanger  the  very  existence 
of  your  Majesty's  American  dominions.  We  are  sensible  that 
some  of  your  Majesty's  subjects  may  reap  emoluments  from 
this  sort  of  traffic,  but  when  we  consider  that  it  greatly 
retards  the  settlement  of  the  colonies  with  more  useful 
inhabitants  and  may  in  time  have  the  most  destructive 
influence,  we  presume  to  hope  that  the  interest  of  a  few  will 
be  disregarded  when  placed  in  competition  with  the  security 
and  happiness  of  such  numbers  of  your  Majesty's  dutiful  and 
loyal  subjects.  We  therefore  beseech  your  Majesty  to  remove 
all  those  restraints  on  your  Majesty's  governors  in  this  colony 
which  inhibit  their  assenting  to  such  laws  as  might  check  so 
pernicious  a  consequence."  To  this  appeal  no  attention  was 
paid  in  England.41  The  Secretary  of  State  curtly  said  that  no 
answer  would  be  given. 

So  general  in  Virginia  was  the  odium  of  the  policy  that 
forced  negro  slavery  and  population  upon  the  colonies,  that 
Jefferson,  voicing  the  sentiments  of  his  people,  inserted  a 
severe  arraignment  of  England's  king  in  the  first  draft  of  the 
Declaration  of  Independence  for  inciting  the  negroes  to  arms, 

41  Journal  of  the  House  of  Burgesses,  131 ;  Tucker,  Blackstone,  pt.  II.,  v.  lr 
app.,  52. 


The  Slave  Trade  and  Slave  Population.  23 

"those  very  negroes,"  he  said,  "whom  by  an  inhuman  use  of 
his  negative  he  hath  refused  us  permission  to  exclude  by 
law."  ®  The  same  clause  previously  inserted  in  the  preamble 
of  the  first  constitution  of  the  State  in  1776,  and  continued  in 
every  Virginia  constitution  to  the  present  day,  is  a  living  wit 
ness  of  the  Virginians7  sincere  contempt  for  what  they  termed 
one  of  the  chief  acts  of  the  "detestable  and  insupportable 
tyranny  "  of  the  Mother  Country,  and  justified  their  revolt 
from  her  authority.  The  forced  importation  of  convicts  and 
slaves  was  then  not  an  unimportant  cause  of  the  change  of 
sentiment  in  the  peculiarly  loyal  colony  of  Virginia43  that 
won  her  support  of  the  Revolution. 

One  of  the  first  acts  of  Virginia  as  a  sovereign  State  was 
the  emphatic  prohibition  of  the  slave  trade,  enforced  by  the 
exaction  of  such  penalties  and  oaths  from  traders  or  immi 
grants  that  few  might  hope  to  evade  the  law.44  This  act  was 
passed  by  her  first  Assembly  in  1778,  thirty  years  before 
Great  Britain  took  like  measures,  and  before  the  operation  of 
the  prohibition  of  the  United  States,  delayed  by  the  interests 
of  New  England  and  some  of  the  Southern  States.  Virginia 
thus  had  the  honor  of  being  the  first  political  community  in 
the  civilized  modern  world  to  prohibit  the  pernicious  traffic. 
Her  course  of  action  was  probably  at  first  determined  by  fear 
of  the  effects  of  increased  negro  population  upon  domestic  and 
political  institutions,  rather  than  by  sentimental  disapproval 
of  the  institution  of  slavery,  a  disapproval  not  general  with 
Englishmen  of  that  early  day.  As  late  as  1793  the  rnigra- 


"Hening,  I.,  50. 

43  Virginia  Constitution,  1878,  66;  Ellis,  Debates,  III.,  452,  454;  Jefferson, 
Works  (Ford  ed.),  II.,  11,  52,  53;  Franklin,  Works  (Bigelow  ed.),  IV., 
108,  254.  The  clause  was  probably  the  work  of  George  Mason  and 
Jefferson. 

44Hening,  IX.,  471,  472;  cf.  XIII.,  62.  The  penalty  to  the  importer 
was  £1,000,  and  to  the  trader  and  seller  £500  and  the  freedom  of  the  slave. 
A  solemn  oath  was  required  of  every  settler  that  he  imported  no  slaves  for 
sale  and  had  owned  none  bought  since  the  passage  of  the  Act. 


24  History  of  Slavery  in  Virginia. 

tion  or  importation  of  free  negroes  and  mulattoes  into  the 
State  was  prohibited  under  the  heavy  penalty  of  £100.  Yet 
in  the  late  years  of  the  eighteenth  century  the  opposition  to 
the  institution  of  slavery  itself  had  so  far  advanced  in  Vir 
ginia  as  to  suggest  that  it  may  have  rendered  effective  sup 
port  even  earlier  to  the  demand  for  the  exclusion  of  slaves. 
In  1788  the  reduction  of  the  children  of  free  blacks  and 
mulattoes  to  slavery  was  made  a  crime  punishable  by  death 
without  benefit  of  clergy,  and  this  was  soon  followed  by  the 
propositions  of  George  Tucker  and  Jefferson  for  a  general 
emancipation  of  slaves.45  Political  and  social  conditions  that 
might  result  from  the  presence  of  and  contact  with  an  enor 
mous  body  of  freed  men  was  an  insurmountable  barrier  to  the 
realization  of  such  wishes.  The  incubus  imposed  by  English 
and  American  greed  through  a  long  series  of  years  could  not 
be  removed  at  a  single  stroke,  however  earnest  the  desire  of 
the  wisest  and  most  far-sighted  Virginians. 

To  appreciate  this  fact  it  is  only  necessary  to  revert  to  the 
continued  growth  of  African  population,  which  all  the  efforts 
of  the  colonists  had  been  unable  to  check.  From  the  middle 
of  the  century,  when  the  African  population  was  120,156  to 
173,316  whites,  it  had  steadily  increased  until  1782,  when 
there  were  270,762  slaves  to  296,852  free  persons,  and  the 
blacks  were  consequently  possibly  equal  to  or  more  numerous 
than  the  whites.  Importations  had  not  even  then  ceased,  and 
Jefferson  declared ;  "  This  blot  on  our  country  increases  as  fast 
or  faster  than  the  whites."46 

After  1723  the  negro  population  had  constantly  gained 
upon  the  white,  but  it  had  now,  or  certainly  within  the  next 
few  years,  reached  its  highest  proportion  to  the  total  popula 
tion,  i.  e.j  over  50  per  cent.  With  the  prohibition  of  the 
slave  trade,  although  the  domestic  increase  was  great,  its  ratio 


45  Herring,  XII.,  531 ;  Statutes  at  Large,  1793,  n.  s.,  I.,  239 ;  Tucker,  Slavery 
in  Virginia. 

46  Jefferson,  Notes,  329,  334. 


The  Slave  Trade  and  Slave  Population.  25 

began  to  decline,  and  in  1790  it  had  fallen  to  40.9  per  cent. 
In  the  next  decade  it  rose  again  to  41.6  per  cent,  and  con 
tinued  to  rise  until  between  1820  and  1830,  when  the  slave 
population  was  39.9  per  cent.,  and  the  ratio  of  negroes  was 
43.4  per  cent.  But  from  that  point  the  ratio  declined  steadily 
to  the  outbreak  of  the  war  between  the  States,  when  it  was 
scarcely  37  per  cent.  The  cause  of  the  rise  in  the  early  nine 
teenth  century  was  not  importation,  which  had  practically 
ceased,  but  the  enormous  domestic  natural  increase,  which 
raised  the  slave  population  from  293,427  in  1790  to  469,757 
in  1830.  Between  1830  and  1840  there  was  an  actual 
decline  to  448,987  slaves,  owing  to  the  opening  of  the  great 
Southwest  to  cotton.  This^j^e_n£e_tjxa-lar^ 
trade  from  Virginia  ancffhe  old  slave  States  which  tended  to  -A" 
carry  off  the  natural  increase.  It  was  estimated  in  1831  that 
Virginia  sent  annually  as  many  as  6,000  slaves  to  the  other 
Southern  States.47  After  the  panic  of  1841,  which  restricted 
this  outlet,  the  slave  population  again  began  to  rise,  and  in 
1850  there  were  472,528  slaves  in  Virginia,  though  the  whites 
were  now  increasing  vastly  out  of  proportion  to  the  blacks. 
In  1860  there  were  490,865  slaves  and  53,042  free  colored 
persons  as  compared  with  1,047,411  whites. 

Virginia,  however,  remained  until  the  war  the  most  popu 
lous  of  the  Southern  States  in  both  whites  and  blacks,  though 
Georgia,  Mississippi  and  Alabama  by  1860  were  closely 
approximating  her  in  negro  population.  Although  the 
negroes  in  Virginia  in  1790  were  almost  as  many  as  those 
in  Maryland,  North  Carolina  and  South  Carolina  combined, 
and  nearly  one-third  of  the  entire  black  population  of  the 
United  States,  their  proportion  diminished  before  the  increas 
ing  numbers  in  these  States,  Georgia,  and  the  new  States  of 

47  Tucker,  Progress  of  United  States,  17,  22,  27,  35,  45,  55 ;  Chase  and  San- 
born,  North  and  South,  20.  The  highest  ratio  of  the  nineteenth  century  of 
slaves  and  blacks  to  total  population  was  reached  in  1820 — 39.9  per  cent, 
for  slaves,  and  43.4  per  cent,  for  blacks. 


26  History  of  Slavery  in  Virginia. 

the  Southwest.  From  1820  to  1850  the  rate  of  increase  of 
slave  population  in  Virginia  was  from  three  to  ten  times  less 
than  in  any  other  Southern  State  except  Maryland,  while  the 
continued  drain  of  the  domestic  slave  trade  to  the  South  and 
the  emigration  of  free  negroes  to  the  North  was  reducing  her 
black  population  to  limits  comparable  with  that  of  many  of  her 
sister  States.  Though  the  sentiment  for  emancipation  gained 
ground  constantly  from  1790  to  1830,  as  is  shown  by  the 
large  increase  of  free  negroes,  and  though  the  density  of  popu 
lation  was  beginning  to  produce  conditions  that  economically 
demanded  the  extinction  of  slavery,  there  was  no  hope  that 
either  emigration  or  deportation  would  ever  rid  the  State  of 
the  incubus  of  its  African  population.  The  solution  of  this 
problem  so  earnestly  sought  and  debated  by  leading  men  in 
the  eighteenth  and  early  nineteenth  centuries,  just  as  that  of 
its  prevention  had  been  by  their  fathers,  and  like  it  without 
result,  has  passed  to  the  present  generation,  which,  faced  by 
the  same  insurmountable  barriers,  has  at  last  accepted  the  fact 
of  an  ever-present  negro  population  and  has  striven  to  meet 
resultant  conditions  in  politics  and  society  to  the  best  of  its 
ability  with  wisdom  and  justice. 


CHAPTER  II. 
DEVELOPMENT  OF  SLAVERY. 

Legal  Status  of  the  Slave. — The  creation  of  legal  status  is 
dependent  locally  upon  either  customary  or  statutory  law,  and 
in  the  case  of  organized  society  usually  upon  both.  It  is  the 
result  of  development  rather  than  of  a  single  specific  act, 
though  such  an  act  culminating  from  a  previous  development 
may  serve  to  distinguish  sharply  the  legal  condition  of  one 
individual  from  that  of  another  and  so  mark  the  progression 
from  one  status  to  another.  Status  embraces  one  or  more 
incidents  essential  to  its  strict  definition,  which  rest  for  author 
ity  ultimately  on  custom  recognized  as  law  through  either 
judicial  decisions  or  statutory  enactments.  These  incidents 
may  be  combined  with  others,  non-essential,  which,  derived 
from  the  same  source,  vary  in  number,  kind  and  degree 
according  to  the  nature  of  the  status  fixed,  and  which  are 
constantly  increased  and  modified  as  this  status  approaches  its 
full  legal  perfection.  The  addition  or  modification  of  some 
essential  incident,  however,  may  at  any  time  involve  such 
important  consequences  and  differences  in  legal  relations  as  to 
justify  the  creation  in  terms  of  law  of  a  new  status  marking 
the  rise  of  a  new  institution  which,  historically,  is  but  a  part 
of  a  previous  institutional  growth.  This,  as  will  be  pointed 
out,  finds  illustration  in  the  closely  related  institutions  of 
servitude  and  slavery,  each  with  its  clearly  marked  status  in 
law  and  custom. 

In  the  case  of  societies  politically  dependent,  as  colonies 
generally  are,  the  status  of  individuals  not  pre-determined  by 
the  common,  or  customary  law  or  statute  law  of  the  governing 
community,  or  by  private  international  law,  may  be  fixed  as 

27 


28  History  of  Slavery  in  Virginia. 

to  its  characteristic  element,  by  single  acts  of  the  judiciary  or 
legislature,  of  the  sovereign,  or  even  of  the  dependent  body, 
where  such  initiative  is  delegated  to  it.  In  these  acts  either 
the  force  of  previous  custom  in  the  community  is  recognized 
or  legality  is  given  to  the  legislation  of  some  other  political 
entity  through  the  adoption  of  a  status  determined  by  it. 
Both  of  these  methods  receive  illustration  in  the  imposition 
of  a  status  by  the  English  and  Dutch  upon  the  negroes 
imported  into  their  American  colonies. 

The  distinguishing  mark  of  the  state  of  slavery  is  not  the 
loss  of  liberty,  political  and  civil,  but  the  perpetuity  and 
almost  absolute  character  of  that  loss,  whether  voluntary  or 
involuntary  in  origin.  It  differs,  then,  from  other  forms  of 
servitude  limited  in  place  or  time,  such  as  mediaeval  vassalage, 
villainage,  modern  serfdom  and  technical  servitude  in  degree 
rather  than  in  kind;  its  other  incidents  being  very  similar 
and  in  many  cases  even  identical  with  theirs.  In  the  civil 
right  of  personal  freedom  the  slave  alone  has  no  part,  but  in 
other  social  rights,  such  as  personal  security  and  the  right  to 
private  property,  the  slave  might,  and  in  almost  all  historic 
cases  did,  participate  to  a  limited  extent  together  with  the 
vassal,  villain,  serf  and  servant. 

The  first  negroes  introduced  into  the  North  American  Colo 
nies,  that  is,  those  early  brought  to  the  Bermudas  and  to 
Virginia,  do  not  seem  to  have  been  slaves  in  the  strict  sense 
of  the  term.  As  the  captives,  not  of  warfare,  but  of  piracy, 
they  were  under  the  protection  of  international  law  in  main 
taining  their  original  status,  and  had  they  been  citizens  of  a 
powerful  civilized  community  they  might  have  received  it. 
They  were,  no  doubt,  slaves  or  captives  of  the  Spanish,  but 
no  rights  of  ownership,  even  if  just,  could  pass  to  the  nation 
by  whom  they  were  made  a  prize  of  piracy.  The  masters  of 
the  Dutch  and  English  privateers,  therefore,  had  no  rights  of 
ownership  which  they  could  legally  exercise  or  transfer  over 
the  negroes  imported  until  rights  were  recognized  by  the  law 
of  England  or  of  the  Bermudas  and  Virginia.  Until  this 


Development  of  Slavery.  29 

recognition  came,  the  negroes  were  persons  of  undetermined 
status  to  whom  the  privileges  of  the  common  law  were  not 
specifically  extended.  If  the  term  slavery  can  be  used  at  all 
to  describe  their  condition  it  is  only  in  the  sense  of  political 
as  distinguished  from  domestic  slavery ;  that  is,  dependence 
upon  the  state  similar  to  the  plebeian  at  Rome  and  the  helot 
at  Sparta,  a  condition  from  which  the  majority  of  the  Vir 
ginians  had  as  a  matter  of  fact,  though  not  of  law,  just 
emerged  in  1619,  and  in  which  the  people  of  the  Bermudas 
still  to  a  certain  extent  remained.  Domestic  slavery  could1 
find  no  sanction  until  the  absolute  ownership  in  the  bodies 
of  the  negroes  was  vested  by  lawful  authority  in  some  indi 
vidual.  The  first  step  in  this  direction  was  not  made  until 
1623  in  the  Bermuda  Islands,  and  it  was  not  until  1625  that 
a  case  involving  similar  action  arose  in  Virginia.2 


1  Compare  Tucker's  view  in  his  " Slavery  in  Virginia"  17-22. 

8  Prior  to  this  the  negroes  were  legally  but  colony  servants,  and  a  dispo 
sition  to  recognize  them  as  such  seems  apparent.  Both  in  the  Bermudas 
and  in  Virginia  public  provisions  were  exchanged  for  them  in  the  first 
instance,  and  they  were  put  to  work  upon  public  lands  to  support  the 
governor  and  other  officers  of  the  government;  or,  as  were  several  in 
Virginia,  they  were  put  into  the  hands  of  representative  planters  closely 
connected  with  the  government  in  order  to  separate  them  from  one  another. 
The  plan  was  that  probably  reproduced  in  Providence  Island,  where  in 
1633  (Calendar  State  Papers,  p.  160,  162,  167,  229)  it  was  recommended  that 
twenty  or  thirty  negroes  be  introduced  for  public  works,  and  that  they 
should  be  separated  among  various  families  of  officers  and  industrious 
planters  to  prevent  the  formation  of  plots.  Some  of  these  negroes  received 
wages  and  purchased  their  freedom,  and  the  length  of  servitude  seems  to 
have  been  dependent  on  the  time  of  conversion  to  Christianity  (Ibid.,  202). 

In  1623,  according  to  the  census  taken  and  preserved  in  "Lists  of  Living 
and  the  Dead  in  Virginia"  (February  16,  1623)  (Colonial  Records  of  Virginia, 
37,  et  seq.},  it  appears  that  the  twenty-three  negroes  living  prior  to  April 
preceding  were  distributed  among  seven  distinct  settlements:  at  Fleur  de 
Hundred,  eleven;  at  Warrasqueak,  four;  at  James*  City,  three;  at  Eliza 
beth  City,  two,  and  at  three  outlying  plantations  one  each.  From  the 
muster  taken  in  the  next  year  (1624-25)  (Hotten,  Lists,  etc.,  218,  et  seq.) 
the  twenty-three  negroes  then  living  were  distributed  in  five  localities  in 
the  possession  of  seven  planters,  planters  in  two  cases  having  property  in 


30  History  of  Slavery  in  Virginia. 

In  both  instances  the  question  settled  was  that  of  owner 
ship  of  the  right  to  the  services  of  negroes,  not  of  their  per 
sons.  In  the  Bermudas  it  was  vested  in  individuals,  and  has 
the  appearance  of  a  full  recognition  of  private  ownership  in 
this  right.  In  Virginia  the  right  was  vested  in  an  individual, 
but  under  peculiar  circumstances,  and  as  the  individual  was 
the  governor  of  the  colony,  it  probably  involved  nothing 
more  than  the  legal  recognition  of  public  ownership3  which 


the  same  place  (James  City  and  Elizabeth  City).  From  a  careful  com 
parison  of  these  lists  with  documents  showing  the  location  of  these  planters 
and  their  plantations  in  1623  and  1625,  respectively,  it  seems  certain  that 
the  persons  in  possession  of  the  negroes  were  the  same  in  both  years,  and 
doubtless  had  had  control  of  them  from  their  first  introduction  in  1619, 
1621  and  1623.  There  is  nothing  to  suggest  that  a  single  transfer  of  pos 
session  had  taken  place  after  being  fixed,  though  in  several  cases  the 
negroes  had  been  moved  from  one  place  or  plantation  to  another  by  their 
possessors.  Not  more  than  three  instances  of  this  even  seem  to  have 
occurred  :  (1)  three  women  were  removed  probably  from  Governor  Yeard- 
ley's  property  at  Fleur  de  Hundred  to  his  place  at  Jamestown  ;  (2)  a  child 
and  its  mother  (Peter  and  Frances)  were  transferred  from  Warrasqueak 
to  Abraham  Piercey's  estate,  called  Piercey  Hundred;  (3)  John,  a  body- 
servant,  probably  of  Captain  West's,  accompanied  him  on  his  removal  from 
a  plantation  opposite  to  James  City  to  Elizabeth  City,  where  he  was  settled 
on  the  company's  land.  (Brown,  Genesis,  II.,  1087.)  It  is  a  significant 
fact  that  the  seven  possessors  of  the  negroes  were  all  officers  of  the  govern 
ment  except  two  in  1625;  i.  e.,  Bennet,  a  London  merchant  owning  a  large 
plantation  in  Virginia,  and  Captain  William  Pierce,  a  member  of  the 
Council  for  Virginia  in  1681,  and  all  except  three  in  1619.  (K.  Kingsmill, 
councilor,  in  1625-6,  Bennet  and  Pierce.)  Of  the  possessors  of  1619  one 
was  Governor  Yeardley ;  one  a  burgess,  Tucker ;  one  cape  merchant, 
Piercey;  and  one,  Captain  West,  a  Councilman.  (Brown,  idem,  II.,  1047 ; 
Lefroy,  Bermudas,  I.,  252,  281.) 

'Lefroy,  Bermudas,  I.,  281;  Jefferson,  Reports,  Case  of  Brass;  Neil, 
Virginia  Carolorum,  33.  In  the  Bermudas  negroes  were  at  this  time 
divided  amongst  masters  by  the  governing  authorities.  Whether  this 
involved  full  ownership  of  their  services  or  was  only  in  the  nature  of  a 
lease  of  public  servants  by  the  colony  is  not  quite  clear.  In  Virginia  the 
celebrated  case  of  the  negro  Brass  is  cited  erroneously  by  Jefferson  as  the 
first  instance  of  fixing  the  status  of  the  negro  slave.  Brass  was  brought  in 
on  a  ship,  and  seems  to  have  been  the  personal  servant  of  the  master  of  the 


Development  of  Slavery.  31 

custom  and  official  action  had  previously  sanctioned  in  the 
case  of  former  negroes.  In  each  case  the  legal  right  conferred 
was  that  of  possessio  and  not  of  domtmitwi,  and  in  the  absence 
of  specification  to  the  contrary  it  was  of  limited  duration  and 
consequently  lacked  the  most  essential  elements  of  a  state  of 
slavery.  The  subsequent  action  of  the  possessors  shows  that 
the  legal  limitations  were  recognized  and  observed. 

Whatever  may  have  been  the  intent  and  hope  of  the  per 
sons  in  possession  of  the  negroes  as  regards  their  ultimate 
enslavement,  no  attempt  to  do  so  legally  seems  for  a  long  time 
to  have  been  made.  Though  the  practice  and  incidents  of 
negro  and  Indian  slavery  in  the  Spanish  colonies  were  per 
fectly  familiar  to  the  people  of  Virgina,  for  some  reason  the 
notion  of  enslavement  gained  ground  but  slowly,  and  although 
the  conditions  surrounding  a  negro  or  Indian  in  possession 
could  easily  make  him  a  de  facto  slave,  the  colonist  seems  to 
have  preferred  to  retain  him  only  as  a  servant.  This  was 
largely  the  result  of  the  developing  institution  of  servitude 
which  in  the  early  years  of  the  seventeenth  century  adequately 
met  the  economic  demands  of  colonial  society,  and  for  social 
and  moral  reasons  was  preferable  to  any  system  of  slavery, 
and  particularly  to  that  of  negroes  and  Indians. 

The  primary  steps  in  the  institutional  development  which 
culminated  in  slavery  are  then  to  be  found  in  the  legislation, 
customary  and  statutory,  that  defined  that  condition  of  persons 
legally  known  as  servitude.4  Servitude  not  only  preceded 
slavery  in  the  logical  development  of  the  principle  of  subjec 
tion,  standing  mid-way  between  freedom  and  absolute  subjec 
tion,  but  it  was  the  historic  base  upon  which  slavery,  by 


vessel.  The  master  having  died,  the  question  of  the  ownership  of  Brass 
was  raised.  The  general  court  of  Virginia  decided  that  rather  than  vest 
him  as  a  slave  in  the  hands  of  the  ship's  company,  it  would  assign  him  to 
the  governor  of  the  colony. 

4  For  a  full  discussion  of  the  origin  and  development  of  this  institution 
see  the  author's  White  Servitude  in  Virginia,  Johns  Hopkins  University 
Studies  in  Historical  and  Political  Science,  thirteenth  series. 


32  History  of  Slavery  in  Virginia. 

the  extension  and  addition  of  incidents,  was  constructed. 
Developed  itself  from  a  species  of  free  contract- labor,  by  the 
peculiar  conditions  surrounding  the  importation  of  settlers 
and  laborers  into  the  English-American  colonies,  servitude 
was  first  applied  to  whites  and  then  to  negroes  and  Indians. 
It  began  to  receive  legal  definition  as  soon  as  colonial  law 
became  operative  in  1619,  at  the  very  time  that  the  first 
importations  of  negroes  were  made.  It  was  but  natural  then 
that  they  should  be  absorbed  in  a  growing  system  which 
spread  to  all  the  colonies  and  for  nearly  a  century  furnished 
the  chief  supply  of  colonial  labor.  Negro  and  Indian  servi 
tude  thus  preceded  negro  and  Indian  slavery,  and  together 
with  white  servitude  in  instances  continued  even  after  the 
institution  of  slavery  was  fully  developed. 

Virginia  was  not  the  only  colony  in  which  servitude  bore 
this  direct  relation  to  slavery  as  its  preparatory  stage  or  form. 
Negro  and  Indian  servitude  passed  historically  into  slavery 
in  most  of  the  English- American  colonies,  if  not  in  all.  This 
is  certainly  true  of  Maryland,  Massachusetts,  Rhode  Island, 
Pennsylvania,  Georgia,  North  Carolina  and  South  Carolina. 
In  all  of  these  colonies  statutory  recognition  of  slavery,  though 
tending  to  be  anticipated  by  customary  or  judicial  sanction, 
was  postponed  for  sometime  after  the  introduction  of  the  sub 
jects  of  slavery,  who  were  consequently  referred  to  a  different 
status.5 

Most  of  the  incidents  developed  in  servitude  were  passed 
on  to  slavery,  some  of  them  modified  and  amplified  to  con 
form  to  the  changed  relations,  but  the  numerous  acts  on  the 
statute  books  applying  equally  to  servants  and  slaves  show 
that  the  similarity  and  very  essential  connection  of  the  two 
institutions  continued  while  they  existed  side  by  side.  The 
period  of  the  chief  legal  development  of  servitude  was  natur- 


5  Kurd,  Law  of  Freedom  and  Bondage,  I.,  248,  249,  257,  260,  262,  268,  269, 
note  275,  289,  295,  297,  310.  Laws  relating  to  servants  and  slaves;  Robin, 
son  MSS.,  10,  12 ;  Accomac  Kecords,  2. 


Development  of  Slavery. 

ally  prior  to  the  recognition  of  slavery,  but  even  a 
transition  to  slavery  had  been  effected,  and  through  the  whole 
time  that  the  two  institutions  were  coexistent,  that  is,  for 
more  than  a  century  in  Virginia,  Massachusetts,  Maryland 
and  Connecticut,  and  for  long  periods  in  the  other  colonies, 
the  reciprocal  influence  of  the  one  on  the  other  was  marked. 
The  general  effect  of  this  relation  is  to  be  seen  in  the  gradual 
hardening  of  the  conditions  of  servitude  and  mitigation  of 
those  of  slavery,  so  that  the  form  finally  assumed  by  slavery 
was  of  a  milder  type  than  ancient,  mediaeval,  or  even  con 
temporary  forms  of  that  institution,  while  the  line  between 
servitude  and  slavery  tended  constantly  toward  obliteration.6 
Servitude,  occupying  a  primary  position  in  colonial  devel 
opment,  was  as  regards  its  principles  largely  the  product  of 
customary  law.  It  was  a  condition  unknown  to  the  common 
law  of  England,  and  had  to  depend  in  the  first  instance  for 
its  sanction  and  definition  on  the  growing  body  of  colonial 
common  law,  supplemented  by  colonial  statutes  where  unity 
and  exactness  were  demanded  by  the  growing  complexity  of 
incidents  as  institutional  development  proceeded.  Owing  to 
the  simplicity  of  the  relations  of  master  and  servant  and  the 
ability  of  colonial  courts  to  regulate  the  rules  applying  to  it, 
few  statutes  were  called  for  before  the  middle  of  the  seven 
teenth  century,  but  from  that  point  forward  the  urgent  neces 
sity  for  legal  uniformity,  now  threatened  by  the  varying 
practices  of  the  judiciary,  could  only  be  met  by  legislative 
action.7  It  was  in  this  period  of  growing  statutory  regulation 
that  occasion  arose  for  strictly  defining  the  status  of  slavery. 
Slavery  consequently  in  Virginia,  Massachusetts,  and  a  num 
ber  of  the  colonies  rested  for  its  earliest  general  sanction  upon 
statute,  and  was  in  its  future  development  very  largely  the 


8  Compare  here  the  lengthening  of  the  terms  of  servitude  and  the  frauds 
by  which  the  attempt  was  made  to  turn  the  servant  into  a  de  facto  slave. 
White  Servitude  in  Virginia,  68. 

7  Ibid.,  42. 


34  History  of  Slavery  in  Virginia. 

product  of  statutory  law.  As  an  institution  it  was,  like  servi 
tude,  purely  a  colonial  development  not  determined  nor  affected 
by  the  law  of  England,  although  slavery,  unlike  servitude,  was 
recognized  by  the  Mother  Country  and  in  general  found  a 
sanction  in  international  as  well  as  in  municipal  law.  In  this, 
however,  Virginia  and  the  other  colonies  differed  from  New 
York,  where  the  doctrines  of  the  civil  law  as  enforced  in 
Holland,  and  not  colonial  law,  were  first  applied  to  sanction 
slavery.8 

The  language  of  legislative  recognition  in  the  several 
colonies  indicates  the  essential  element  in  the  change  of  status. 
The  first  general  sanction  of  slavery  in  Virginia  was  by  an 
Act  of  Assembly,  March,  1661,  stating  that  "negroes  are 
incapable  of  making  satisfaction  [for  the  time  lost  in  running 
away]  by  addition  of  time." 9  Addition  to  the  time  of  ser 
vice  was  the  customary  punishment  inflicted  upon  servants 
for  this  offense.  So  the  Maryland  law,  c.  30,  1663,  declared 
that  "  all  negroes  or  other  slaves  shall  serve  durante  vita." 
The  Massachusetts  Fundamentals  of  1 641  proscribed  "  bond 
slavery,  villenage,"  and  u  captivity/'  except  of  "  captives 
taken  in  war,"  and  of  such  strangers  "as  willingly  sell  them 
selves  or  are  sold."  "  And  those  shall  have  all  the  liberties 
and  Christian  usages  which  the  laws  of  God  established  in 
Israel  concerning  such  persons  doth  morally  require,"  said 
the  law.  Virginia,  then,  so  far  from  being  the  first  Ameri 
can  colony  to  sanction  domestic  slavery,  as  has  been  generally 
believed,  was  in  reality  but  the  third,  being  preceded  by  both 
Massachusetts  and  Connecticut.  Statutory  recognition  of 
slavery  by  the  American  colonies  occurred  as  follows  :  Massa 
chusetts,  1641;  Connecticut,  1650;  Virginia,  1661;  Mary 
land,  1663;  New  York  and  New  Jersey,  1664;  South  Caro 
lina,  1682;  Pennsylvania  and  Rhode  Island,  1700;  North 


"There  were,  it  is  said,  15,000  slaves  (negroes)  in  England  in  1772. 
Hurd,  Law  of  Freedom  and  Bondage,  I.,  178-192,  260,  356-371. 
9Hening,  II.,  26;  cf.  Ibid.,  L,  538-540. 


Development  of  Slavery.  35 

Carolina,  1715,  and  Georgia,  1755.10  Prior  to  these  dates  the 
legal  status  of  all  subject  negroes  was  that  of  servants,  and 
their  rights,  duties,  and  disabilities  were  regulated  by  legisla 
tion  the  same  as,  or  similar  to,  that  applied  to  white  servants^ 

This  was  true  also  of  the  subject  Indian  up  to  1670  in 
Virginia,  when  an  act  reduced  the  few  Indians  that  might  be 
imported  by  sea,  presumably  from  the  West  Indies  or  the 
Spanish  main,  to  a  state  of  slavery.11  The  great  body  of 
Indian  subjects  being  native,  however,  remained  servants  up 
to  1676,  when  in  the  exigencies  of  the  Indian  war  captives 
were  made  slaves  by  one  of  Bacon's  laws.  Before  this  time 
no  native  Indian,  whether  a  child  sold  by  its  parents  or  a 
captive  of  warring  tribes  could  be  legally  held  as  a  slave. 
Acts  were  passed  in  1655  and  in  1661  specifically  prohibiting 
Indian  slavery  and  guaranteeing  to  such  Indians  all  the  rights 
of  English  servants.  When  the  attempt  was  made  to  reduce 
them  to  slavery  freedom  might  readily  be  obtained  by  appeal 
to  the  courts.12  In  1682  Indian  slavery  was  extended  to  cap 
tives  sold  by  tributary  Indians  in  the  hope  of  mitigating  their 
condition,  as  it  was  certain  that  they  would  be  held  in  slavery 
by  their  captors.  In  1691,  however,  Indian  slavery  was 
finally  abolished  by  Law.13 

The  legal  first  enslavement  of  Indians  covered  a  much 
shorter  period  in  our  history  than  that  of  negroes.  In  two 


10  Hurd,  Law  of  Freedom  and  Bondage,  L,  249,  257,  260,  262,  265,  266,  268, 
269,  275,  276,  283,  288,  289,  295-297,  310.     The  use  of  the  term  "negro 
slaves"   by  the  act  of  1659-60  encouraging  Dutch  importations  was  no 
sanction  of  the  institution,  but  merely  referred  to  the  usage  of  the  term  by 
the  Dutch. 

In  the  Bermudas  slavery  seems  to  have  existed  as  early  as  1629  and 
certainly  by  1648.  Lefroy,  Bermudas,  I.,  463,  483,  500,  505,  633. 

11  Hening,  II.,  280,  283. 

"Herring,  II.,  346,  404;  White  Servitude,  40,  note.  This  was  one  of 
Bacon's  acts,  but  it  was  subsequently  affirmed  by  the  Assembly ;  Henrico 
Records,  41,  57. 

1JHening,  I.,  396,  471 ;  II.,  69,  163,  155. 


36  History  of  Slavery  in  Virginia. 

colonies,  Virginia  and  Pennsylvania,  it  was  confined  to  less 
than  a  quarter  of  a  century,  and  in  Virginia  alone  it  was 
limited  wholly  to  the  seventeenth  century.  In  at  least  two 
others,  Rhode  Island  and  North  Carolina,  it  existed  for  less 
than  half  a  century,  and  in  the  remaining  colonies  it  extended 
but  little  over  this.  By  1715  the  importation  of  Indian 
slaves  into  New  England  was  generally  prohibited,  or  was 
discouraged  by  duties,  as  in  New  Jersey.  This  result  has 
a  natural  explanation  in  the  fact  that  the  Indian  proved  an 
unprofitable  and  dangerous  subject  of  slavery.  He  was  of 
little  economic  benefit,  was  unruly  and  immoral,  inciting  the 
other  Indians,  and  was  a  serious  discouragement  to  the 
importation  of  white  labor  in  the  form  of  servants.  After  the 
Tuscaroras  war  in  the  South  the  source  of  slavery  by  capture 
was  largely  cut  off,  and  Indian  slavery,  except  as  supported 
by  heredity,  generally  declined. 

The  recognition  of  Indian  and  negro  slavery  in  customary 
law  came  somewhat  earlier  than  that  of  statute.  In  Massa 
chusetts  and  Connecticut  Pequod  captives  were  spared,  and 
treated,  as  captives  generally  were  under  the  sanction  of  jus 
gentium,  as  perpetual  servants.  They  were  sold  to  other 
Indians  or  to  the  island  and  mainland  colonies  of  England 
as  early  as  1637,  thus  marking  the  first  small  beginnings  of  a 
domestic  slave  trade.  Negroes  as  articles  of  exchange  or 
purchase  were  introduced  early  in  1638,  and  some  of  these 
seem  to  have  been  by  custom  reduced  to  slavery  as  well  as  to 
its  consequence,  slave-breeding.  So,  too,  in  Rhode  Island, 
the  practice  of  buying  negroes  "  for  service  or  slaves  forever  " 
was  common  in  1652.  No  legal  authority  for  this  status, 
however,  yet  existed  in  positive  legislative  acts.  The  earliest 
sanction  in  local  law  was  a  ruling  of  the  Massachusetts 
General  Court  in  1639  confirming  a  title  to  slaves  specifically. 
The  status  servitude,  on  the  contrary,  had  distinct  recognition 
even  in  statute  law  by  1630-36  in  Massachusetts,  by  1643  in 
Connecticut,  and  by  1647  in  Rhode  Island.  This  was  also 
the  case  in  Virginia  by  1619,  in  Maryland  by  1637,  in  North 


Development  of  Slavery.  37 

Carolina  by  1665,  in  Pennsylvania  by  1682,  and  in  Georgia 
by  1732,  so  that  ample  time  was  allowed  in  many  cases  for  the 
local  definition  of  this  institution  before  slavery  entered  upon 
either  its  customary  or  legal  development.14 

In  the  circumstances  surrounding  the  enactments  defining 
slavery  the  natural  transition  of  servitude  into  slavery  is 
apparent.  Particularly  is  this  the  case  with  regard  to  negroes 
in  Virginia,  Maryland  and  Massachusetts.  The  first  essential 
element  in  the  change  of  status  consisted  merely  in  the  modi 
fication  of  an  incident,  the  extension  of  the  term  of  service 
from  a  period  of  years  to  that  of  natural  life.  What  is  termed 
perpetual  was  substituted  for  limited  service,  while  all  the 
predetermined  incidents  of  servitude,  except  such  as  referred 
to  ultimate  freedom,  continued  intact.  This  fact  was  recog 
nized  in  the  common  language  of  subsequent  law,  which  fre 
quently  employed  the  terms  "  servant  for  life,"  "  perpetual 
servant,"  and  "bond  servant"  (bound  servant)  interchangeably 
with  "slave,"  and  joined  the  names  "servant"  and  "slave" 
and  their  liabilities  in  the  same  enactments.  Apparently  there 
was  no  marked  change  of  condition  either  practically  or  legally 
as  regarded  the  individual.  The  master  acquired  an  exten 
sion  of  his  right  to  service  and  a  resulting  extension  of  his 
obligation  of  protection  and  maintenance.  The  slave  lost  his 
right  to  ultimate  liberty  but  gained  the  more  valuable  right 
of  protection  for  his  life  and  person.16  It  was  but  the  realiza 
tion  in  the  case  of  a  special  class  of  servants  of  an  aim  that 
had  included  all  in  the  various  attempts  to  lengthen  and  con 
stantly  renew  terms  of  service  so  as  to  provide  for  continuous 
subjection,  which,  if  successful,  would  have  resulted  in  prac 
tical  life  servitude  and  ultimate  slavery.  The  advantages  of 


14  Steiner,  Slavery  in  Connecticut,  9, 10 ;  Hurd,  Law  of  Freedom  and  Bondage, 
I.,  229,  247,  257,  269,  287 ;  Fowler,  Status  of  the  Negro  in  Connecticut,  p.  12, 
says  negro  slavery  existed  in  New  Haven  in  1644;  Plymouth  Col.  Records, 
I.,  70,  71 ;  Bassett,  Slavery  in  North  Carolina,  78;  Moore,  Slavery  in  Massa 
chusetts,  2,  9,  11,  15. 

16  Winder  MSS.,  I.,  245. 


38  History  of  Slavery  in  Virginia. 

this  from  the  point  of  view  of  the  master  in  the  fixity  and 
certainty  of  a  labor  supply  and  extension  of  the  right  of  con 
trol  were  so  apparent  as  readily  to  gain  the  support  of  public 
sentiment  when  the  class  of  servants  affected  were  generally 
regarded  as  a  menace  to  society  if  free  and  uncontrolled. 
Consequently,  as  this  unassimilated  and  dangerous  element 
was  increased  by  the  processes  of  Indian  warfare  or  of  the 
African  trade,  the  demand  seemed  just  and  necessary  for  a 
legal  extension  of  the  master's  power  to  the  full  limit  of  con 
trol  claimed  by  the  possessors  of  the  servant's  person  before 
their  transfer  to  third  parties. 

But  a  more  important  element  of  the  change  of  status 
effected  by  the  several  enactments  was  the  extended  personal 
application  given  both  to  the  modified  and  other  incidents  of 
servitude.  They  were  held  to  attach  ipso  facto  to  the  issue 
of  perpetual  servants  where  both  parents  were  of  this  status. 
To  cover  other  cases  additional  provision  was  made  at  the 
time  or  implied  by  the  statute,  or  was  subsequently  enacted 
designating  the  parent  that  conferred  status  upon  the  offspring. 
Such  a  principle  of  heredity  was  wholly  foreign  at  that  time  to 
the  condition  of  servitude,  and  broadly  differentiated  it  from 
the  system  which  resulted.  This  first  doctrine  of  slavery,  as 
it  might  be  called,  was  a  natural  effect  of  the  conditions  of 
perpetual  service,  rather  than  an  inference  from  a  legal  con 
ception  of  the  absolute  dominion  of  the  master  in  his  slave 
and  the  consequent  inability  of  the  slave  to  hold  property 
separate  from  his  master ;  ideas  which  had  not  yet  developed 
in  colonial  law,  however  well  known  they  may  have  been  to 
the  Roman  lawyers  and  to  the  common  law  which  supported 
English  villainage.16  It  was  evident  that  parents  under  an 
obligation  of  life  service  could  make  no  valid  provision  for  the 
support  of  their  offspring,  and  that  a  just  title  to  the  service 


16  Vinogradoff,  Villainage  in  England,  45,  47,  59 ;  Muirhead,  Roman  Law, 
40,  120,  126,  127;  Justinian,  Institutes,  Lib..  I.,  Tit.  3,  sec.  4.  " Servi  aul 
nascuntur  aut  fiunt — fiunt  ex  jure  gentium  autjure  civili." 


Development  of  Slavery.  39 

of  the  child  might  rest  on  the  master's  maintenance,  a  prin 
ciple  which  was  later  commonly  applied  in  cases  of  bastardy 
in  servitude.  The  origin  of  this  doctrine  in  the  Roman  law 
of  slavery  is  not  certain.  It  is  not  definitely  ascribed  there 
either  to  jus  civile  or  jus  gentium,  but  whatever  its  sanction  its 
existence  probably  had  a  like  natural  explanation.  Though 
direct  influence  of  Roman  law  principles  is  not  to  be  inferred, 
it  is  an  interesting  fact  that  as  soon  as  issue  appeared  from 
parents  differing  in  status,  the  doctrine  partus  sequitur  ventrem 
was  evolved,  specifically  or  by  implication,  in  the  statutes  or 
customary  law  of  a  number  of  the  colonies,  while  the  English 
common  law  principles  of  villainage,  deriving  status  from  the 
father,  was  specifically  enjoined  only  in  Maryland.  This  in 
volved  an  important  addition  to  the  subjects  of  slavery  in  the 
larger  portion,  if  not  the  whole,  in  some  cases,  of  the  mulatto 
class.  The  order  of  this  important  extension  of  status  to 
further  subjects  by  statute  was  Virginia,  1662;  Maryland, 
1663;  Massachusetts,  1698;  Connecticut  and  New  Jersey, 
1704;  Pennsylvania  and  New  York,  1706;  South  Carolina, 
1712;  Rhode  Island,  1728;  North  Carolina,  1741.17 

The  modification  and  extension,  then,  of  a  single  incident 
of  servitude  produced  a  condition  of  persons  that  involved 
momentous  consequences.  It  led  almost  naturally,  and  under 
subsequent  environment,  necessarily,  to  that  great  body  of 
legislation  which  enters  into  our  historic  concept  of  slavery. 
It  was  the  point  of  institutional  divergence,  if  one  is  to  be 
sought,  where  slavery  began  a  course  of  development  more  or 
less  independent  of  the  system  of  servitude  from  which  it 
descended. 

The  most  important  legal  incidents  developed  in  servitude 
prior  to  this  time  and  passed  on  to  slavery  were  those  con 
nected  with  the  growing  conception  of  property  in  the  servant's 


17Hurd,  Law  of  Freedom  and  Bondage,  I.,  262,  276,  281,  283,  284,  295, 
299 ;  Moore,  Slavery  in  Massachusetts,  25 ;  Bassett,  Slavery  in  North  Caro 
lina,  29. 


40  History  of  Slavery  in  Virginia. 

person.  This  conception  of  property  right  had  passed  from  a 
basis  of  pure  personality  where  it  was  but  a  right  to  service, 
resting  upon  expressed  or  implied  contract  between  legal  per 
sons,  to  one  in  which  the  servant  was  practically  regarded 
and  treated  as  personal  estate.  As  personalty  he  was,  for 
instance,  rated  in  inventories  of  estates,  was  transferable  both 
inter  vivos  and  by  will,  descended  to  the  executors  and 
administrators,  and  was  taxable  for  tithes.  As  a  contractural 
person  he  was  subject  to  corporal  punishment,  to  damages  for 
breach  of  contract  and  to  a  poll  tax,  while  his  rights  included 
a  limited  personal  freedom,  the  possession  of  property  and 
protection  within  the  terms  of  his  contract.  With  the  loss  of 
the  ultimate  right  to  freedom,  the  contractural  element  and 
the  incidents  essential  to  it  were  swept  away,  and  as  the  idea 
of  personality  was  obscured,  the  conception  of  property  gained 
force,  so  that  it  became  an  easy  matter  to  add  incidents  more 
strictly  defining  the  property  right  and  insuring  its  protection. 
Consequently  the  early  transition  of  the  slave  from  personal 
estate  to  a  chattel  real,  or  real  estate  with  accompanying  inci 
dents,  was  easy  and  natural. 

To  this  development  the  status  of  dependent  labor  in  later 
Roman  and  English  law  presents  an  interesting  contrast. 
The  rigid  theoretical  conception  of  the  slave  in  jus  gentium 
and  jus  civile  as  a  mere  chattel,  a  thing,  without  activity  of 
body  or  mind  except  as  the  agent  of  his  master,  and  absolutely 
under  his  dominica  potestas,  gave  way  under  the  doctrines  of 
jus  naturale  to  a  recognition  of  his  personality  and  his  right 
to  legal  protection,  and,  finally,  under  Justinian  to  a  large 
extension  of  the  milder  condition  of  the  colonate  which  carried 
personal  freedom  to  the  subject  though  he  was  still  tied  to  the 
soil,  adscriptus  glebae,  like  the  English  villain,  but  had  only 
the  general  disabilities  of  the  later  serfs.  So  in  England  free 
contract  labor  tended  to  supplant  Norman  villainage  at  a 
comparatively  early  date.  The  social  disturbances  of  the 
fourteenth  century  gave  the  system  of  villainage  its  death 
blow,  and  by  the  time  of  English-American  colonization, 


Development  of  Slavery.  41 

though  an  isolated  case  was  pleaded  in  the  courts  as  late  as 
1618,  the  system  was  practically  non-existent,  and  could  not 
influence  American  development. 

The  agrarian  reform  so  produced  in  England  was  not 
wholly  successful.  It  developed  free  laborers,  but  they  were 
landless  freemen  and  they  were  worse  off  economically  than 
if  they  had  been  kept  in  a  semi-servile  condition.  The  capi 
talist  farmer  swallowed  up  the  small  farmer  and  increased  the 
number  of  landless  laborers.  Under  the  numerous  statutes 
of  laborers  down  to  Elizabeth's  Statute  of  Apprentices  in 
1565,  which  summed  them  all  up,  these  laborers  were  forced 
into  apprenticeships  under  hard  masters.  They  had  fixed 
wages,  fixed  hours  of  labor,  and  fixed  terms  of  service.  Their 
labor  was  free  only  in  the  sense  of  freedom  of  contract.  They 
might  choose  at  what  they  would  work  and  under  whom,  and 
at  what  regulated  wage  and  terms ;  and  the  master,  on  his 
part,  was  held  as  strictly  accountable  for  compliance  with  the 
terms  of  the  contract  as  the  laborer.  This  system  remained 
until  the  industrial  revolution  which  followed  the  introduc 
tion  of  machinery. 

Though  under  different  circumstances  such  a  system  might 
have  been  transferred  bodily  to  the  new  colonies,  the  poverty 
of  the  commercial  companies  undertaking  the  first  settlement, 
and  inability  to  make  good  their  title  to  large  land  possessions 
prevented  the  immigration  of  capitalist  farmers  with  their 
laborers,  and  a  system  conforming  to  conditions  had  to  be 
adopted.  After  passing  through  several  stages  of  develop 
ment  :  the  emigrant  stockholder  who  contracted  for  a  term  of 
service  for  transportation  and  a  share  in  profits ;  involuntary 
service  enforced  by  martial  law ;  penal  servitude ;  and  a 
metayer  system  similar  to  that  of  France  and  Italy,  called 
tenants  at  halves; — "indented"  or  indentured  servitude  was 
developed. 

Servitude  thus,  in  its  colonial  origin,  was  only  such  a  modi 
fication  of  free  contract  labor  in  the  nature  of  apprenticeship 
as  was  demanded  by  the  peculiar  double  relation  it  bore  to 


42  History  of  Slavery  in   Virginia. 

colonization,  being  at  the  same  time  a  labor-supply  and  an 
immigration  agency.  Similar  modifications  existed  in  most 
of  the  French  colonies  and  exist  to-day  with  subject  labor  in 
British  South  Africa  and  in  Hawaii.  But  as  the  simple  rela 
tion  of  master  and  servant  developed,  the  reciprocal  rights  and 
duties  of  the  relation  became  more  complex  under  the  natural 
demands  of  environment,  and  assumed  a  hardness  and  fixity 
comparable  only  with  the  incidents  of  a  well-defined  social 
institution  such  as  feudal  vassalage.  Starting  as  a  free  per- 

O  O  1 

sonal  relation  based  on  voluntary  contract  for  a  definite  period 
of  service,  in  lieu  of  transportation  and  maintenance  or  profit 
sharing,  between  poor  or  venturesome  immigrants  from  Great 
Britain  or  the  Continent  and  the  individuals  or  corporations 
that  imported  them  to  America,  it  tended  to  pass  into  a  prop 
erty  relation  in  which  (1)  was  recognized  only  the  involuntary 
and  sometimes  indefinite  service  enjoined  by  legal  authority, 
judicial  or  statutory  in  England  or  the  colonies,  or  procured 
by  force  through  an  organized  system  of  kidnapping  persons 
in  Great  Britain,  known  as  "  spiriting "  ;  and  (2)  in  which 
control  of  varying  extent  was  asserted  over  the  bodies  and 
liberties  of  the  person  during  service  as  if  he  were  a  thing.18 
The  right  to  the  service  of  both  classes,  voluntary  and  involun 
tary,  was  supposed  to  be  based  upon  contract  written,  verbal, 
in  the  form  of  court  decisions,  act  of  assembly  or  "  according 
to  the  custom  "  of  the  country.  This  involved  a  legal  fiction 
in  the  case  of  involuntary  servants  similar  to  that  assumed  by 
Sir  Henry  Maine  to  explain  the  contractural  origin  of  slavery 
by  capture,  where  a  contract  is  presupposed  between  the  slave 
and  the  master,  rendering  service  for  the  gift  of  life.  The 
fiction  was  of  importance  as  it  gave  the  courts,  particularly 


18  These  servants  represented  all  classes,  from  the  highest  to  the  lowest ; 
spendthrifts  and  younger  sons  of  the  nobility  and  gentry,  political  prison 
ers,  some  Scotch  rebels  and  Irish  tories,  poor  literary  and  college  bred  men, 
"spirited"  persons  of  all  degrees,  vagrants  and  convicts  for  petty  crimes, 
well-to-do  German  and  Swiss  peasants  who  wished  to  learn  farming,  and 
political  and  religious  malcontents. 


Development  of  Slavery.  43 

the  local  courts,  but  also  the  general  courts  when  acting 
judicially,  the  right  both  as  to  master  and  servant  of  defend 
ing  and  enforcing  the  stipulations  of  the  contract.  The  deci 
sions  of  these  courts  legislated  the  most  important  incidents 
into  servitude  by  crystalizing  the  customary  law  on  the  sub 
ject  of  the  relation  of  master  and  servant.  This  judicial  action 
was  followed  by  statutes  which  strictly  defined  these  incidents 
and  other  rights  and  duties  that  were  to  be  enforced  by  the 
courts.  Thus  an  important  step  was  taken  in  the  institutional 
development  of  the  relation  which  ultimately  passed  in  fact, 
as  well  as  by  title,  into  the  relation  of  master  and  slave. 

With  the  change  of  condition,  questions  demanding  legisla 
tive  settlement  rapidly  arose  and  the  slave  code  of  Virginia 
began  to  assume  definiteness.  The  question  of  status  settled 
by  the  act  of  1661  applied  specifically  only  to  negroes  with 
out  defining  what  constituted  a  negro.  There  could  be  no 
doubt  as  to  the  direct  issue  of  negro  parents,  but  when  the 
number  of  slaves  began  to  increase  and  immoral  relations 
developed  more  fully  between  them  and  Englishmen  in  the 
colony  or  aboard  the  transports,  serious  doubt  was  expressed 
as  to  the  status  of  the  offspring.  Cjn  view  of  the  fact  that  the 
fear  of  fornication  between  a  free  white  woman  and  a  negro 
was  practically  absent  at  that  time,  the  Assembly  in  1662 
felt  safe  in  enunciating  a  doctrine  of  descent  similar  to  the 
partus  sequitur  ventrem  of  the  Roman  law.  The  offspring 
was  declared  to  follow  the  condition  of  its  mother,  bond  or 
free,  and  as  far  as  could  be  foreseen  the  entire  mulaitppopu- 
lation  would  thus  be  reduced  to  slavery  or  to  servitude.*  To 
prevent  the  act  from  any  sign  of  encouragement  to  slave 
breeding  by  whites,  heavy  fines,  double  those  in  other  cases, 
were  laid  upon  whites  committing  fornication  with  negroes.20 


19  Hening,  Statutes,  1662,  p.  12.  This  opened  the  way  to  an  ultimate 
class  of  free  mulattoes  by  servant  women,  though  free  mulattoes  born  of 
free  white  women  must  have  been  very  few. 

30  Ibid.,  II.,  170. 


44  History  of  Slavery  in  Virginia. 

Thus  by  independent  local  legislation,  determined  by  social 
exigencies  arising  from  differences  of  race  and  color,  a  second 
great  source  of  domestic  slavery  recognized  by  Roman  law, 
i.  e. ;  birth  by  a  slave  mother,  was  affirmed  in  Virginia,  and 
it  became  the  ultimate  means  of  imposing  status  upon  the 
majority  of  the  negroes  of  the  South.  Of  the  other  two 
natural  sources  of  slavery,  as  outlined  by  Justinian,  one,  pur 
chase,  which  had  been  recognized  the  year  previous,  was  by 
far  the  most  common  in  the  seventeenth  century  and  in  the 
eighteenth  also,  until  checked  by  the  decline  of  the  slave  trade. 
From  conquest,  the  third  source,  the  imposition  of  status  was 
very  limited.  Captives  of  warfare  in  Virginia  were  com 
paratively  insignificant  in  number  as  the  principle  applied 
only  to  Indians  between  1676  and  1691. 

Notwithstanding  its  effect  it  is  clear  that  the  purpose  of  the 
act  of  1662  was  primarily  punitory.  It  was  designed  to  pre 
vent  race  mixture  rather  than  to  create  slaves.  The  "  spu 
rious  issue,"  as  it  was  termed  of  whites  and  blacks  was  at  all 
times  abhorred.  In  the  earliest  instances  of  fornication  with 
negroes,  in  1630  and  1640,  the  severest  penalties  were 
inflicted.  Whipping  and  public  confession,  were  exacted  of 
both  the  offenders  in  1640.  An  additional  penalty  was 
imposed  upon  the  female  in  1662  of  the  bondage  of  her  issue, 
which  it  was  hoped  would  effectually  check  the  evil.  Prob 
ably  little  trouble  from  the  growth  of  mulattoes  was  actually 
experienced  until  the  second  half  of  the  century,  when  both 
negro  and  Indian  population  had  greatly  increased.  The 
name  "  mollatoes,"  of  Spanish-American  origin,  first  occurs 
in  an  act  of  1682,  applying  only  to  a  class  of  imported  cross 
breeds,  but  by  1691  its  extension  to  a  native  element  seems 
to  have  been  established.  At  this  time  negro  and  Indian 
bastards  were  increasing,  and  the  offense  of  race  mingling  had 
extended  even  to  white  women.  Thus  arose  a  new  difficulty 
in  the  clear  probability  of  a  class  of  free  mulattoes,  but  the 
manner  in  which  the  question  was  disposed  of  shows  con 
clusively  that  prevention  of  an  "  abominable  mixture "  and 


Development  of  Slavery.  45 

not  enslavement  was  the  end  in  view.  Five  years  servitude 
was  inflicted  upon  the  guilty  white  woman,21  and  her  issue 
was  bound  to  service  for  30  years,  apprenticeship  being  the 
common  and  legal  mode  of  dealing  with  bastardy.  Thus  by 
statute  was  originated  a  class,  probably  always  small,  of 
mulatto  servants,  which  occupied  a  position  midway  between 
the  slave  and  the  ordinary  bound  servant,  and  became  an 
ultimate  source  of  the  free  mulatto.  In  Virginia  the  principle 
of  hereditary  slavery  was  never  carried  to  its  full  logical  con 
clusion.  Issue  did  not  uniformlv  follow  the  lower  status. 

The  philosophic  basis  of  slavery  rests  historically  either 
upon  race  or  creed,  or  both.  So  far  the  distinction  in  the 
status  imposed  upon  the  negroes  and  Indians  and  their  off 
spring  in  America  was  based  upon  the  natural  and  ineradic 
able  quality  of  racial  difference.  If  explanation  for  slavery  is 
sought  beyond  the  unquestioned  exigencies  of  the  actual 
situation  it  is  to  be  found  in  race  prejudice,  a  principle  which 
has  constantly  worked  to  reduce  to  subjection  the  inferior  and 
weaker  race,  where  two  peoples  have  been  brought  into  close 
contact.  The  historic  justification  of  slavery  by  natural  sub 
jection  as  expressed  in  the  dogma  of  Athenian  philosophy, 
"  one  race  is  born  to  rule  and  and  another  to  serve,"  was 
sufficient  to  meet  any  question  of  the  theoretical  or  moral 
basis  of  slavery  that  had  arisen.  But  another  great  principle 
historically  of  equal  importance  in  the  development  of  slavery 
had  to  be  considered ;  namely,  religion.  On  difference  of 
race  and  difference  of  creed  ancient  and  modern  slavery  alike 
have  rested.  The  barbarian,  the  heathen,  and  the  heretic 
have  been  through  all  ages  subjects  of  dominion. 

The  earliest  justification  offered  by  the  Portuguese  for  the 
recognition  of  modern  African  slavery  was  the  salvation  of 


"Robinson  MSS.,  1640,  October  17;  Hening,  II.,  146,  170;  III.,  87. 
If  the  offender  were  a  free  woman  she  could  pay  a  fine,  £15,  in  lieu  of  her 
service.  In  case  of  a  white  (man  or  woman)  marrying  a  negro  or  Indian, 
bond  or  free,  the  white  was  to  be  banished  forever. 


46  History  of  Slavery  in  Virginia. 

souls.  This  argument  quieted  the  conscience  of  Christian 
Europe  and  the  Christian  Church  joined  hands  with  the 
Christian  State  in  the  process  of  enslavement.  It  is  but 
natural  that  a  theory  supported  by  such  reasoning  and  by 
common  acceptance  should  appear  in  the  colonies  of  European 
States.  The  English  carried  its  application  a  step  farther 
than  the  Spanish  Bishop  Las  Casas,  whose  notion  of  humanity 
at  least  included  the  natural  rights  of  Indian  natives.  It  was 
clear  that  involuntary  slavery  of  Christians  to  Christians  was 
inconsistent  with  the  freedom  and  equality  of  man  involved 
in  the  true  profession  of  Christ.  From  the  middle  ages  the 
doctrine  of  the  Universal  Church  worshipping  one  God,  who 
regarded  all  men  alike,  had  tended  to  mitigate  the  condition 
of  subject  classes,  and  the  Reformation  had  established  more 
fully  in  doctrines  of  free  grace  and  democracy  a  freedom  of 
mind,  body,  and  soul  from  the  trammels  of  mere  formalism 
and  self-constituted  authority,  and  had  extended  the  notion 
of  Christian  fellowship  and  brotherhood.  The  freedom  of 
Christianity  was  in  theory  shared  by  all  members  of  the 
Christian  State,  and  the  name  "  Christian/7  in  opposition  to 
"heathen,"  embraced  the  inhabitants  of  a  Christian  land. 
Consequently  the  enslavement  of  Englishmen  or  persons  born 
in  Christian  lands  was  abhorrent.  No  such  feeling  was  ex 
tended  to  the  heathen,  whether  Jew,  Mohammedan  or  Indian. 
Slavery  was  but  a  just  means  to  a  pious  end,  the  salvation 
of  the  soul.  But  when  the  heathen  slave  became  a  convert, 
a  Christian,  the  inconsistency  of  a  theory  that  kept  him  in 
subjection  was  apparent.  Baptism  thus  involved  a  dilemma. 
If  conferred  it  sealed  the  pious  end  of  slavery  but  freed  the 
Christian  slave.  On  the  contrary,  if  enfranchisement  was  a 
possible  result,  Christianization  was  certain  to  be  retarded 
or  completely  stopped.  The  wisdom  and  the  conscience  of 
colonial  assemblies  were  equal  to  the  emergency.  They  held 
both  to  their  justification  and  to  their  slaves.  The  Virginia 
Assembly  in  a  law  of  1667  presents  but  a  typical  example 
of  general  colonial  action.  It  settled  the  question  by  the 


Development  of  Slavery.  47 

nai've  declaration,  worthy  of  the  metaphysician  that  rightly 
separates  the  spiritual  person  from  bodily  form,  a  Baptisme 
doth  not  alter  the  condition  of  the  person  as  to  his  bondage 
or  freedom ;  in  order  that  diverse  masters  freed  from  this 
doubt  may  more  carefully  endeavor  the  propagation  of  Chris 
tianity." 

In  1670,  when  slaves  were  for  the  first  time  legally  desig- 
nated  in  Virginia,  the  benefits  of  Christianity  as  to  freedom 
were  limited  to  servants  imported  from  Christian  lands.22 
From  circumstances  which  arose  later  this  principle  preserved 
many  negroes  and  mulattoes  from  slavery.  The  act  was 
passed  to  ascertain  who  were  slaves  and  for  what  time  Indians 
might  be  legally  held  in  servitude.  It  was  designed  to  pro 
tect  Indians  from  enslavement.  But  practically  it  reduced 
nearly  all  negroes  imported  by  sea  to  slavery,  while  probably 
most  Indians,  as  they  generally  came  by  land,  remained  ser 
vants,  though  for  exceptionally  long  terms. 

Negroes  who  had  been  Christianized  before  importation, 
or  who  were  imported  from  the  West  Indies  or  the  English 
colonies,  and  possibly  those  who  had  been  reshipped  in  Eng 
land  were,  like  Indians,  by  the  terms  of  the  act  only  servants. 
They  were,  however,  probably  comparatively  small  in  num 
ber  at  that  time,  as  importation,  except  from  Africa  direct, 
was  scanty.  But  they  seem  to  have  increased  rapidly  in  the 
next  twelve  years,  and  many  a  heathen  negro,  Moor,  or 
mulatto  iu  this  period  owed  his  freedom  from  enslavement 
to  the  notion  of  the  territorialization  of  Christianity,  which 
made  even  the  heathen  inhabitant  a  nominal  Christian.  Curi 
ously  the  discrimination  involved  would  have  perpetuated  a 
mixed  class  of  Christian  and  heathen  servants  had  the  law 
continued  as  specified  by  the  act.  But  the  manifest  injustice 
done  to  the  owners  of  slaves  in  other  colonies,  who  lost  their 

"  Hening,  II.,  260.  The  English  Courts  in  1693  adjudged  that  trover  lay 
in  the  case  of  negroes  as  they  were  heathen  and  rightly  detained  as  slaves 
(Gelly  and  Chase,  1.,  147). 


48  History  of  Slavery  in  Virginia. 

property  if  they  brought  them  into  Virginia  by  land,  and 
further,  to  the  negro  who  was  converted  after  his  arrival  in 
Virginia,  soon  called  for  the  repeal  of  a  principle  so  clearly 
inconsistent  with  the  true  intent  of  the  law.23  Necessity,  how 
ever,  prevented  an  extension  to  the  other  wronged  classes  of 
benefits  similar  to  those  conferred  upon  Indians,  for  it  might 
also  have  carried  the  mitigating  influence  of  the  act  to  the 
large  number  of  negroes  discriminated  against. 

The  religious  doctrine  of  freedom  inherent  in  Christianity 
began  to  wane  as  a  practical  principle  and  to  be  supplanted 
by  the  more  profitable  social  principle  of  fundamental  racial 
difference.  So  by  an  act  of  1682  the  benefits  of  Christianity 
as  a  mode  of  securing  freedom  were  definitely  denied  to  all 
negroes,  mulattoes,  hostile  Moors  and  Turks,  and  to  such 
Indians  as  were  sold  by  other  Indians  as  slaves  where  original 
heathenism  could  be  affirmed.  Thus  for  a  second  time  Indian 
slavery,  and  for  the  first  time  the  slave  trade  by  Indians,  were 
legalized.  For  economic  and  political  reasons  enslavement 
could  now  be  more  openly  justified.  The  importation  of 
slaves  was  beginning  to  compete  with  that  of  servants,  and  a 
stricter  limitation  of  the  right  of  freedom,  even  in  the  case 
of  servants,  showed  the  growth  of  this  demand.24 

Reenacted  in  the  revisal  of  1705,  the  law  of  1682  remained 
the  basis  of  the  determination  of  legal  slavery  for  over  half  a 
century,  that  is  to  1748.  Unless  then  an  imported  servant 


3SHening,  II.,  490;  1705,  c.  49;  1753,  c.  2.  It  was  a  matter  of  impos 
sibility  to  extend  the  benefits  of  freedom  to  Christian  negroes,  as  all  would 
become  Christians  in  order  to  escape  enslavement. 

24Hening,  II.,  490;  1705,  c.  49;  1753,  c.  2,  4;  Jefferson,  Reports,  112, 
note.  The  change  of  sentiment  on  which  this  was  based,  though  non- 
religious,  was  not  wholly  irreligious.  It  was  the  common-sense  view  of  the 
English  trader  and  colonist,  based  on  experience,  that  religion  as  applied 
to  the  heathen  barbarians  with  whom  they  had  to  deal  was  a  veneer  little 
more  than  skin  deep,  while  color  and  heredity  they  thought  were  in  the 
blood.  If  their  consciences  at  all  troubled  them  they  were  easily  quieted 
by  the  reflection  that  they  were  traders  and  not  missionaries,  and  that  the 
demand  was  based  on  economic  necessity. 


Development  of  Slavery.  49 

were  a  Christian,  a  term  which  was  interpreted  to  include  the 
children  of  Christian  parents  and  the  natives  of  a  Christian 
land,  at  the  time  of  his  first  purchase  by  a  Christian,  "  free 
dom  in  Christ  Jesus/7  regardless  of  subsequent  conversion, 
could  in  no  wise  be  interpreted  as  favorably  affecting  his 
status. 

The  nominal  test  for  slavery  became  original  heathenism 
and  present  servitude  resting  upon  the  prima  facie  evidence 
of  importation.  The  actual  discrimination,  however,  was 
racial,  as  practically  no  Asiatics  or  Africans  were  born  of 
Christian  parentage  nor  had  they  come  from  Christian  lands. 
Possibly  some  Indians  were  saved  from  enslavement  under 
the  act,  as  missionary  efforts  may  have  brought  them  by 
descent  and  nativity  within  the  interpretation  placed  upon  the 
word  Christian.  But  these  must  have  been  very  few,  as  the 
title  to  the  service  of  Indians  generally  rested  either  upon  the 
purchase  of  Indian  captives,  all  of  whom  were  reduced  to 
slavery  by  the  act,  or  upon  contract25  for  the  service  of 
children  made  by  the  parent  to  secure  their  education  and 
Christianization.  This  latter  class  was  in  itself  limited,  and 
probably  few  of  these  children  were  the  offspring  of  Christian 
parents. 

As  a  result  of  the  Indian  troubles  of  Bacon's  time  the 
principle  of  deportation  and  enslavement  of  the  captive  Indian 
had  been  abandoned  since  1676.  One  of  Bacon's  laws  as 
a  retaliatory  measure  had  recompensed  the  misdeeds  of  the 
Indians  by  reducing  the  captives  to  slavery,  and  when  the 
revolt  was  ended  a  law  of  the  Assembly,  first  in  1676  and 
later  in  1679,  reaffirmed  the  principle  in  an  almost  literal 
transcription,  making  Indians  free  booty  to  the  captor.  In 
this  light  the  change  of  sentiment  that  called  for  Indian 


»  Hening,  II.,  143.  The  acts  of  1654,  p.  5 ;  1655,  p.  6 ;  1657,  p.  8  ;  1661, 
p.  2,  made  provision  for  binding  out  children  until  25  years  of  age.  They 
were  specially  guarded  from  being  made  slaves,  and  it  was  illegal  to  reduce 
them  to  that  status. 

4 


50  History  of  Slavery  in  Virginia. 

slavery  in  1682  is  easily  explained.  Legal  enslavement  of 
Indians  was  continued  for  nearly  ten  years  longer,  when  it 
was  finally  prohibited  by  implication  rather  than  by  the  terms 
of  the  act  of  1691,  which  legalized  free  trade  with  all  Indians. 
This  act  was  probably  intended,  as  it  was  later  construed,  to 
acknowledge  the  free  state  of  all  Indian  tribes.  The  General 
Court  was  called  to  pass  upon  the  matter  as  late  as  1777.  At 
that  time  the  evidence  of  the  act  of  1691  had  been  lost  sight 
of,  and  the  Court  ruled  that  no  legal  enslavement  could  have 
taken  place  later  than  1705,  as  the  revisal  of  that  year  con 
tained  a  law  for  free  trade  with  the  Indians  which  was  inter 
preted  as  freeing  the  Indian  from  future  enslavement.  Not 
until  twenty-nine  years  later,  1806,  was  it  discovered  that  this 
revised  law  was  only  a  reenactment  of  a  law  of  1691,  so  it  is 
probable  that  a  number  of  Indians  and  their  descendants 
were  deprived  most  unjustly,  and  by  gross  negligence,  it  has 
been  thought,  of  the  rights  of  freedom  actually  guaranteed  by 
law.26  Yet  notwithstanding  the  favorable  decision  of  the 


86  Hening,  II.,  346,  404,  491;  III.,  69.  Virginia  Reports,  I  Hening  & 
Munford,  137,  138 ;  2  Hening  &  Munford,  149.  The  law  of  1691  was  suffi 
ciently  promulgated  at  the  clerk's  offices  of  the  various  counties  at  this 
time,  as  is  shown  by  the  fact  that  copies  in  manuscript  existed  in  North 
ampton  and  Accomac  counties,  and  in  an  edition  of  Purvis,  based  on  the 
MSS.  in  Accomac,  it  also  occurs.  It  was  upon  Purvis  that  Judge  Tucker 
based  his  opinion  in  1806.  How  the  lost  record  and  the  ignorance  of  the 
General  Court  in  1777  are  to  be  explained  it  is  impossible  to  say.  If  there 
was  official  negligence,  which  seems  improbable,  it  was  of  a  most  criminal 
nature.  But  even  in  1806,  the  Court  was  ignorant  of  the  two  laws  of  1676 
and  ruled  that  no  Indian  could  be  a  slave  who  was  not  a  descendant  of  a 
heathen  imported  between  1679  and  1691.  It  is  only  proper  to  say,  how 
ever,  that  the  law  of  1691  was  susceptible  of  a  different  interpretation,  and 
it  is  barely  possible  that  intent  conformed  to  this,  in  which  case  enslave 
ment  was  just  and  the  ruling  of  the  judiciary  was  a  misconstruction.  The 
legislature  may  have  viewed  the  act  as  a  treaty  with  a  nation  which,  ipso 
facto,  was  recognized  as  of  equal  status  as  to  freedom,  while  the  treaty  in  no 
wise  prevented  subsequent  enslavement  of  individuals  sold  by  the  nation 
itself  to  the  whites,  or  of  hostile  captives,  or  of  Indians  not  native  North 
Americans  as  generally  understood. 


Development  of  Slavery.  51 

General  Court  in  1777,  which  decided  against  legal  enslave 
ment  after  1705,  the  principle  was  felt  to  be  so  far  unsettled 
that  two  cases  as  late  as  1792  and  1793  were  appealed,  though 
unsuccessfully,  from  county  courts  to  the  Court  of  Appeals  to 
maintain  the  right  to  the  service  of  descendants  of  Indians 
enslaved  subsequent  to  the  act  of  1705.  In  both  cases  the 
appellate  court  affirmed  the  judgment  of  the  lower  court, 
which  granted  freedom,  and  construed  the  act  of  1705  as  re 
pealing  all  former  acts,  including  even  that  of  1682.27 

From  the  beginning  of  enslavement  popular  sentiment  as 
expressed  by  the  legislature  and  the  judiciary  had  discrimi 
nated  in  favor  of  the  native  Indian  and  against  the  negro. 
Never  at  any  time  had  it  demanded  the  subjection  of  the 
Indian  race  per  se,  as  was  practically  the  case  with  the  negro 
in  the  first  slave  act  of  1661,  but  only  of  a  portion  of  it,  and 
that  admittedly  a  very  small  portion.  This  distinction  was 
not  based,  however,  so  much  upon  humanity  as  upon  motives 
of  a  practical  nature  determined  by  the  character  and  environ 
ment  of  the  Indian  himself.  These,  as  previously  stated,  ren 
dered  him  less  fit,  both  politically  and  economically,  as  well 
as  naturally,  for  continued  slavery.  In  the  case  of  the  Indian, 
then,  slavery  was  viewed  as  of  an  occasional  nature,  a  pre 
ventive  penalty  and  not  as  a  normal  and  permanent  condition. 
Consequently,  Indian  slavery  in  any  important  sense  was  a 
thing  of  the  past,  as  far  as  legislation  was  concerned,  before 
the  most  onerous  incidents  of  the  status  were  fully  developed, 
and  slavery  rapidly  assumed  a  solidarity  in  regard  to  the  one 
alien  race,  the  negro,  that  simplified  both  the  domestic  and 
the  legal  problems  involved.23 

The  third  M  step  in  the  substitution  of  race  for  the  religious 

27  Washington,  Reports,  L,  167,  307  (Coleman  vs.  Dick,  et  aL). 

28 1  Hening  &  Munford,  183,  lledings  vs.  Wright. 

29  The  first  step  was  denying  the  efficacy  of  baptism  as  a  source  of  freedom  ; 
the  second  was  limiting  the  benefits  of  Christianity  to  those  imported 
as  Christians  in  1670,  which,  in  1682,  was  further  restricted  to  those  born 
of  Christian  parents  in  a  Christian  land  and  first  purchased  by  a  Christian. 


52  History  of  Slavery  in  Virginia. 

principle  in  designating  the  slave  is  to  be  found  in  the  act  of 
1705,  which  purported  to  be  but  the  codification  of  previous 
legislation  still  in  force  regarding  slaves.  The  act  of  1682 
was  more  than  reenacted  in  this  act,  however ;  it  was  modified 
by  language  that  may  have  made  a  material  difference  in  the 
interpretation  as  to  who  were  slaves.  Negroes  and  mulattoes 
were  not  named  in  the  act,  but  they  were  practically  the  only 
persons  worth  accounting  that  were  enslaved  by  it  and,  proba 
bly,  nearly  every  subsequently  imported  servant  of  this  race 
was  enslaved,  as  freedom  was  now  made  to  depend  upon  per 
sonal  Christianity  in  his  native  country,  or  the  proof  of  actual 
freedom  in  England,  or  some  Christian  country  before  he  was 
shipped.  Turks  and  Moors  in  amity  with  England  were 
excepted,  as  in  the  act  of  1682.  This  act  cut  off  from  free 
dom  the  few  negroes  and  mulattoes  who  might  have  been  born 
of  Christian  parents  in  England,  the  Spanish  colonies,  the 
English  colonies,  and  other  Christian  lands,  and  who  had  been 
left  free  by  the  act  of  1682.  Christianity  as  a  test  had  now 
been  reduced  to  its  lowest  terms.  Faith  in  Jesus  Christ  was 
a  "  saving  grace  "  only  so  far  as  it  was  actual  and  personal  in 
the  land  of  nativity.  It  was  easier  for  a  camel  to  pass  through 
the  eye  of  a  needle  than  for  a  negro  or  mulatto  servant  there 
after  imported  into  Virginia  to  escape  being  made  a  slave  if 
the  law  was  enforced  to  its  full  extent.  Such  remained  the 
law  designating  slaves  for  the  next  twenty-three  years. 

Possibly  by  an  inadvertence  of  the  copyist,  possibly  by 
intent,  this  law  appeared  in  the  revisal  of  1748  with  the  sub 
stitution  of  the  clause  "all  persons  who  have  been  or  shall 
be  imported  "  instead  of  the  phrase  "  all  servants  imported." 
Commenting  upon  the  effect  of  this  change,  Jefferson  says; 
"  An  alteration  of  a  few  words  indeed,  but  of  the  most  ex 
tensive  barbarity.  It  has  subjected  to  slavery  the  free  in 
habitants  of  the  two  continents  of  Asia  and  Africa  (except  the 
small  parts  of  them  inhabited  by  the  Turks  and  Moors  in 
amity  with  England)  and  also  the  aborigines  of  North  and 
South  America — unless  the  word  '  shipped '  may  avail  them. 


Development  of  Slavery.  53 

It  even  makes  slaves  of  the  Jews  who  shall  come  from  these 
countries,  on  whose  religion  ours  is  engrafted,  and  so  far  as  it 
goes  supposed  to  be  founded  on  perfect  verity.  Nay,  it  ex 
tends  not  only  to  such  of  those  persons  as  should  come  here 
after  the  act,  but  also  to  those  who  came  before  and  might**? 
then  be  living  here  in  a  state  of  freedom."30  This  provision, 
notwithstanding  its  possible  interpretation  and  the  unjust  ex 
post  facto  clause,  was  nevertheless  retained  in  subsequent  enact 
ments  until  after  the  Revolution.  It  appears  in  the  act  of 
1753  and  was  not  repealed  until  the  abolition  of  the  slave 
trade  in  1778.31 

That  it  was  actually  applied  to  subject  any  others  to  slavery 
than  negroes  and  their  offspring  cannot  be  affirmed  in  the 
absence  of  reported  cases.  The  intent,  if  we  may  judge  from 
later  evidence,  seems  to  have  been  to  draw  the  line  of  demark- 
ation  definitely  on  the  negro  race.  The  substitution  of  the 
word  "  persons  "  for  "  servants  "  would  thus  reduce  practically 
all  of  the  race  imported,  or  acting  in  any  capacity  short  of 
actual  freedom  in  a  Christian  land,  to  a  state  of  slavery. 
This  appears  probable  from  the  subsequent  treatment  of  the 
dilemma  which  was  raised  by  the  logical  inconsistency  with  the 
idea  of  slavery  of  the  Virginia  Declaration  of  Rights,  unani 
mously  adopted  in  1776.32  It  affirmed  the  doctrine  of  natural 
equality  and  inalienable  rights  in  more  explicit  and  unequi 
vocal  terms  than  even  the  Declaration  of  American  Indepen 
dence  penned  by  the  same  hand.  In  neither  case,  however, 


50  Jefferson,  Reports,  112,  note  by  Jefferson.  Possibly  because  servitude 
was  now  well  exhausted  as  a  system,  it  may  have  seemed  more  natural  to 
say  "person"  for  the  imported  one  than  "servant,"  no  misunderstanding 
being  foreseen.  Its  practical  application  probably  did  not  extend  beyond 
the  ordinary  imported  persons,  except  possibly  to  a  few  Indians,  though 
no  case  of  this  is  on  record. 

31  Hening,  VII.,  215 ;  IX.,  472. 

38  Hening,  I.,  47  ;  X.,  109.  It  affirmed,  in  the  1st,  4th,  and  6th  Articles 
of  the  Declaration,  full  equality  before  the  law  as  to  privileges,  suffrage, 
life,  liberty,  property,  and  the  pursuit  of  happiness. 


54  History  of  Slavery  in  Virginia. 

would  supreme  authority,  supported  by  a  general  public 
opinion,  sustain  the  direct  inference  that  negroes  as  men 
possessed  the  rights  accorded  to  other  men.  The  negative 
attitude  of  popular  sentiment,  supported  by  the  courts,  was  a 
proof  either  of  the  sentimental  character  of  these  vaunted 
clauses  and  of  their  use  as  a  political  justification  of  the 
American  Revolution,  or  of  the  opinion  that  the  negro  was 
actually  not  a  man  in  the  full  sense  of  that  term.  Negative 
sentiment,  however,  was  not  unanimous.  No  less  a  legal 
authority  than  George  Wythe,  a  signer  of  the  Declaration  of 
Independence  and  Chancellor  of  the  State  of  Virginia,  had 
the  courage  of  his  convictions  to  the  extent  of  laying  down 
the  rule  that  whenever  one  person  claims  to  hold  another  in 
slavery,  "  onus  probandi  lies  on  the  claimant/7  on  the  ground 
that  freedom  is  the  birthright  of  every  human  being.  We 
may  feel  certain,  too,  that  Jefferson  in  his  detestation  of  the 
social  and  political  effects  of  slavery  would  willingly  have 
extended  that  liberty  to  the  slave  as  a  natural  right  which  he 
afterwards  attempted  to  secure  for  him  as  a  privilege  by 
emancipation.  Though  imbued  as  he  was  with  the  French 
theory  of  natural  equality,  we  have  no  reason  to  doubt  that 
he  was  on  this  point  consistent  with  his  declaration  and  ready 
to  put  it  into  practical  effect  if  he  had  had  the  power.  But 
the  reasoning  of  Wythe  and  Jefferson  went  beyond  that  of 
their  time.  The  Virginia  Court  of  Appeals  disclaimed  the 
decree  of  the  Chancellor  as  far  as  it  related  "  to  native  Afri 
cans  and  their  descendants"  who  had  been  and  were  then 
held  as  slaves,  but  approved  it  as  far  as  it  related  to  whites 
and  native  American  Indians.  The  proposition  of  the  Court, 
though  less  humane,  was  more  strictly  legal  than  Wythe's. 
It  refused  properly,  as  it  had  no  authority,  to  destroy  the 
vested  rights  of  property  holders,  which  was  a  most  probable 
consequence  of  Wythe's  decision.  But  on  the  further  point 
of  the  future  enslavement  of  negroes  it  did  not  rule  specifically, 
but  by  implication  supported  the  principles  of  the  Chancellor 


Development  of  Slavery.  55 

and  of  the  Declaration  of  Rights.33  It  was  in  this  particular 
but  the  mouthpiece  of  a  general  public  sentiment  that  demanded 
the  cessation  of  the  slave  trade,  a  sentiment  that  was  now  at 
last  freed  from  the  shackles  imposed  by  colonial  dependence 
upon  England,  and  within  two  years  was  unanimous  enough 
to  demand  prohibition  in  these  words  of  the  act  of  1778  ;  "  No 
slave  or  slaves  shall  hereafter  be  imported  into  this  common 
wealth  by  sea  or  land,  nor  shall  any  slaves  so  imported  be 
sold  or  bought  by  any  person  whatsoever."34  The  penalty 
attached  to  this  law  was,  that  slaves  so  imported  should 
become  free.55 

The  intent  of  prohibition  was  so  genuine  that  persons  taking 
up  subsequent  residence  in  the  State  were  forced  to  make  oath 
that  none  of  the  slaves  brought  with  them  had  been  imported 
from  Africa  or  the  West  Indies  since  November  J,  1778,  and 
that  being  the  case,  that  further  they  had  not  brought  this 
property  with  intent  of  transferring  its  ownership  by  bargain 
and  sale.  The  only  rights  in  slaves  recognized  by  the  act, 
therefore,  were  those  of  property  interests  already  vested  at  the 
time  of  the  passage  of  the  act  in  citizens  of  Virginia,  or  in  such 
citizens  of  the  rest  of  the  United  States  as  might  remove  to 
Virginia  as  residents,  and  in  the  successors  by  descent,  devise, 
or  marriage  of  the  legal  owners  of  slaves.  Travellers  even 
were  required  to  show  that  any  slaves  accompanying  them 
were  necessary  personal  attendants  who  would  be  removed 
with  them.36 

After  this  time  no  one  could  legally  be  held  as  a  slave  who 
was  not  so  on  the  1st  of  November,  1778,  or  the  descendant 
of  such  a  slave  in  the  female  line.  This  was  an  immediate 
inference  from  the  negative  legislation  just  cited,  but,  to  pre- 


33Hening  &  Munford,  L,  134,  143,  Hudgens  vs.  Wright;  Hurd,  Law  of 
Freedom  and  Bondage,  I.,  246,  note. 

3i  Statutes  of  Virginia,  1778,  3rd.  Sess.,  c.  1. 

35  It  excepted  those  already  vested  by  laws  of  other  states. 

36Hening,  IX.,  472. 


56  History  of  Slavery  in  Virginia. 

vent  mistakes,  a  bill  stating  the  positive  side  of  this  declara 
tion  was  framed  and  reported  by  the  Revolutionary  committee 
of  revisors  to  the  legislature  of  1779,37  and  was  finally  enacted 
as  a  law  in  1785.38  Reenacted  in  the  revisal  of  1792,  this  law 
remained  the  legal  basis  of  the  designation  of  the  slave  with 
out  modification  until  1860.  In  1856,  under  the  peculiar 
political  stress  of  the  time,  the  menace  of  the  free  negro  ele 
ment  and  sectional  agitation,  a  way  was  opened  for  the  volun 
tary  enslavement  of  free  negroes.  This  was  by  petition  to  the 
courts  on  the  part  of  the  negro,  designating  the  master  he 
wished  to  serve,  who  on  his  part  had  to  give  security  and  pay 
into  court  one-half  the  valuation  of  such  a  slave.  Few 
negroes  probably  availed  themselves  of  this  privilege.  A 
more  efficacious  method  was  provided  during  the  legislative 
session  of  1859-60,  by  authorizing  the  sale  of  free  negroes 
convicted  of  penitentiary  offenses  into  absolute  slavery.39  Both 
these  acts  were  probably  retaliatory  and  punitory,  and  had 
little  practical  effect.  They  but  witness  the  extremity  to 
which  the  free  negro  question  that  baffled  Jefferson,  Tucker, 
Randolph  and  the  humanitarians  of  Virginia  had  driven  the 
irritated  and  indignant  majority. 

The  fourth  and  final  step  in  the  logical  adoption  of  race  as 
a  full  and  sufficient  criterion  upon  which  to  base  dependent 
slavery  is  to  be  seen  in  a  long  series  of  earlier  statutes  that 
first  drew  and  applied  the  color  line  as  a  limit  upon  various 
social  and  political  rights,  and  finally  narrowed  its  application 
definitely  to  the  negro  race  with  respect  to  liberty  and 
customary  or  legal  privileges  and  rights.  The  historic  defini 
tion  of  this  color  line  discrimination  which  has  exerted  such  a 
potent  influence  on  the  disabilities  of  the  negro — slave  or  free 
man — is  most  interesting.  Its  earliest  application  was,  as  its 
latest  has  been,  connected  only  with  the  negro  race ;  but  at 


37  Hening,  IX.,  472. 

38  Ibid.,  preface  vol.  XII. ;  XII.,  182,  margin. 

39  Acts,  1856,  c.  46 ;  1859-60,  c.  54,  see  noie. 


Development  of  Slavery.  57 

various  times  it  was  applied  to  Indians,  to  Moors,  to  Moham 
medans,  and  even,  strange  as  it  may  now  appear,  to  Jews.     In 
the   first   instance   it  was  purely  social   in  intent   and  was 
designed  to  prevent  race  mixture.     Thus,  as  early  as  1630 
and  1640,  two  white  men,  Hugh  Davis  and  Robert  Sweet, 
were  the  one  "  bound  and  whipped    before   an  assembly  of 
negroes  and  others  "  and  the  other  made  to  do  public  penance 
in  church  for  the  offense  of  "  lying  with  a  negro," 40  when 
like  offenses  with  whites  were  lightly  punished,  if  at  all.     In 
fact  the  fornication  of  "Englishmen"  with  negro  women  was 
the  direct  cause  of  the  act  of  1662  that  enunciated  the  doctrine 
of  partus   sequitur   ventrem,    which,   imposing   the    mother's 
status  upon  the  offspring,  was  expected  to  act  as  a  deterrent 
influence  upon  the  female.     The  guilty  white  was  at  the  same 
time  compelled  to  pay  a  fine  of  1000  pounds  of  tobacco, 
double  the  amount  exacted  in  other  cases  of  fornication.41     By 
the  provisions  of  the  act  of  1662,  which  for  the  first  time  took 
cognizance  of  importations  of  this  hybrid  offspring  into  the 
colony  as  servants,  such  servants  were  reduced  to  slavery 
equally  as  if  they  were  fall  blooded  negroes  or  Indians.     Any 
thing  that  might  enlarge  this  class  of  half  breeds  was  strongly 
discountenanced.     Intermarriage  of  a  free  white  with  a  negro, 
mulatto  or  Indian,  whether  bond  or  free,  was  in  1691  made 
punishable  with  perpetual  banishment  of  the  white,  and  the 
offense  of  giving  birth  to  a  mulatto  bastard  was  treated  with 
far  greater  severity  than  was  the  case  with  white  bastards.42 
The  temporary  servitude  of  the  bastard  itself  was  also  pro- 


40  Hening,  1.,  146,  552.     The  negro  woman  was  whipped  in  the  latter 
case.     Compare,  Ibid.,  pp.  145,  551,  where  in  the  case  of  fornication  with 
whites  the  offense  is  not  harshly  dealt  with.     In  1657  it  disbarred  the 
offender  from  holding  office  or  bearing  witness;  cf.  also  Ibid.,  L,  252,  433. 

41  Hening,  II.,  115.     A  penalty  of  500  pounds  of  tobacco  was  imposed  in 
such  cases  by  a  law  of  1661. 

**  Hening,  III.,  87,  453.  If  a  free  white  woman  offended  she  was  fined 
£15,  or  sold  into  service  for  five  years.  If  a  servant  white  woman  five 
years  were  added  to  her  term. 


58  History  of  Slavery  in  Virginia. 

vided  for  and,  even  if  of  free  status  by  birth,  it  was  bound 
out  to  service  for  thirty  years.43  In  the  revisal  of  1705  the 
punishment  for  these  offenses  was  made  either  more  severe  or 
more  certain.  A  year  of  service  was  added  to  the  penalty  in 
the  case  of  women  servants,  and  in  the  case  of  the  marriage  of 
free  whites  with  persons  of  the  colored  classes  six  months 
imprisonment  without  bail  and  a  fine  of  £10  was  substituted 
for  banishment,  as  this  penalty  had  been  found  inoperative 
because  the  duty  of  execution  had  been  left  in  the  hands  of 
the  county  justices  but  not  the  means  of  enforcing  it.44  A 
minister  or  other  person  who  should  perform  such  a  marriage 
was  subjected  to  a  fine  of  10,000  pounds  of  tobacco,  half  of 
which  was  to  go  to  the  informer.  This  was  certainly  the 
most  efficacious  mode  of  combatting  the  evil,  as  it  practically 
shut  up  the  avenue  to  legal  or  secret  marriage,  though  it 
could  not  do  so  to  concubinage. 

In  the  recognized  impossibility  of  completely  checking  the 
growth  of  a  mulatto  class  the  only  alternative  left  was  to 
reduce  this  class  as  far  as  possible  to  the  status  of  the  lower 
parent,  so  we  find  that  as  long  as  a  trace  of  the  inferior 
blood  was  commonly  recognizable  the  person  was  socially,  as 
well  as  legally,  treated  as  far  as  possible  as  a  full  blooded 
Indian  or  negro.  Thus  mulattoes,  like  negroes  and  Indians, 
could  not  hold  office  nor  could  they  bear  witness  except  against 
persons  of  their  color.  Nor  could  they,  even  though  free,  hold 
in  servitude  any  one  except  those  "  of  their  own  complexion." 
This  disability  also  applied  to  Jews,  Moors  and  Mohamme 
dans.45  Blood  was  supposed  to  be  traceable  in  the  negro  at 
least  two  generations  farther  than  in  the  case  of  the  Indians, 
so  in  the  earliest  legal  definition  of  the  mulatto  class,  i.  e. ;  in 


43  This  was  punitory,  and  intended  to  restrain  such  offenses  as  well  as  to 
save  the  parish  the  cost  of  maintaining  the  bastard. 

"Hening,  III.,  453,  456. 

"Hening,  III.,  252,  298 ;  1705,  c.  49 ;  III.,  88.  A  mulatto  slave  if  freed, 
like  the  negro,  had  to  be  transported  out  of  the  colony. 


Development  of  Slavery.  59 

the  disabling  act  of  1705,  where  negroes,  Indians,  and  mulat- 
toes  are  classed  with  criminals,  the  terms  were  held  to  embrace 
only  the  children  of  Indians,  but  the  children,  grandchildren 
and  great  grandchildren  of  negroes.  The  discrimination 
against  the  negro  mulatto  if  not  based  upon  complexion,  is 
at  least  historically  explicable.  In  the  early  days  no  great 
antipathy  was  exhibited  against  amalgamation  with  the  In 
dians.  Though  it  never  reached  the  extent  with  the  English 
that  it  did  with  the  French  colonists,  numerous  instances  of 
intermarriage  are  recorded.  The  noted  example  of  Pocahontas 
and  Rolfe  may  be  exceptional  from  the  possible  political  inter 
ests  involved  in  this  semi-royal  and  diplomatic  marriage,  but 
the  Spanish  ambassador  in  London,  Zuniga,  in  a  letter  to 
Philip  of  Spain  cites  with  some  interest  twenty  such  marriages 
in  Virginia,  and  represents  it  as  an  advocated  policy.46  Be 
yond  the  second  degree  of  the  Indian  and  the  fourth  of  the 
negro  mulatto,  there  was  no  bar  but  sentiment  to  prevent 
miscegenation,  and  if  we  can  believe  the  Huguenot,  Peter  Fon- 
tain,  sentiment  as  late  as  1757  was  not  a  sufficient  barrier  even 
against  the  negro  descendants  of  the  fourth  generation.  Actual 
marriage  with  whites  did  take  place,  he  states,  and  worse  still, 
that  the  country  swarmed  with  mulatto  bastards.47 

Mulatto  bastards,  who  by  law  were  obliged  to  serve  some 
master  until  thirty-one  years  of  age,  were  themselves  a  fertile 
source  of  a  new  bastard  element.  Their  position  rendered 
them  especially  eligible  for  gross  purposes,  both  in  their  inti 
mate  contact  with  the  negroes  and  in  their  relations  to  their 
employers.  The  law  had  unwittingly  set  a  premium  upon 
immorality,  as  the  fall  of  the  female  mulatto  not  only  added 
an  additional  term  to  her  period  of  service,  but  her  offspring 
was  by  a  law  of  1723  in  its  turn  forced  to  serve  the  master 
until  the  age  of  thirty-one  years.  Such  mulatto  servants, 
then,  were  scarcely  better  off  as  to  prospective  freedom  than 


46  Brown,  Genesis  of  United  States,  Letters  of  Zuniga,  572,  632. 

47  Fontaine,  Huguenot  Family,  350. 


60  History  of  Slavery  in  Virginia. 

the  negro  slave.  Custom  tended  to  reduce  them  to  a  state  of 
actual  slavery.  About  the  middle  of  the  eighteenth  century 
(circa  1765)  the  practice  arose  of  actually  disposing  of  their 
persons  by  sale,  both  in  the  colony  and  without,  as  slaves.  So 
flagrant  was  the  practice  that  further  legislation  was  demanded 
to  check  the  illegal  proceeding  by  appropriate  penalties.48  It 
would  appear  that  the  offenders  were  those  who  were  entitled 
to  the  mulattoes  only  as  servants,  but  used  the  power  of  their 
possession  for  intimidation  or  deceit,  which  could  be  easily 
practiced  in  the  case  of  minor  bastards  born  in  their  service. 
For  this  reason,  and  probably  as  an  additional  protection,  the 
period  of  service  was  at  this  time  greatly  lessened,  as  "an 
unreasonable  severity"  upon  children,  to  twenty-four  years 
for  males  and  eighteen  years  for  females,  whether  the  child 
were  the  bastard  of  a  free  white,  or  of  a  servant,  white  or 
colored.49  The  practice  was  probably  not  wholly  checked,  for 
as  late  as  1788  it  was  discovered  that  the  offense  existed  of 
kidnapping  the  children  of  free  blacks  and  mulattoes  and  dis 
posing  of  them  as  slaves.  This  was  made  punishable  by 
death  without  benefit  of  clergy,  as  the  Assembly  thought  "  a 
punishment  adequate  to  such  crimes "  had  not  been  hitherto 
provided.60  Fear  of  capital  punishment,  however,  was  not 
strong  enough  to  restrain  the  greed  of  some  slave  dealers.  A 
case  occurred  in  1791  which  was  notorious  for  the  escape  of 
the  criminal  on  a  technical  point  of  law.  Probably  to  pre 
vent  a  similar  occurrence  the  law  of  1798  covering  the  point 
was  enacted. 

The  mulatto  was  finally  and  more  strictly  defined  in  a 
Revolutionary  bill  of  1779,  which  was  enacted  in  1785  and 
became  a  law  in  1787.,  Any  person  one  of  whose  grand 
parents  had  been  a  negro,  though  all  of  his  progenitors, 


48  Herring,  VIII.,  133,  134.  The  seller  forfeited  to  the  buyer  £15  over 
the  amount  of  the  purchase  money  and  £20  to  the  informer.  For  a  second 
offense  he  lost  the  service  of  the  servant. 

49Hening,  VIII.,  134,  135.  50Hening,  XIL,  531. 


Development  of  Slavery.  61 

except  that  one,  and  his  descendants  were  white,  and  every  one 
who  had  one- fourth  part  or  more  of  negro  blood  was  deemed 
a  mulatto.51  This  law,  which  extended  the  contamination  of 
blood  only  to  the  third  generation  and  to  the  quadroon  as  a 
final  limit,  disregarded  Indian  mulattoes  entirely,  and  is  evi 
dence  that  they  had  practically  ceased  to  exist.  It  is  an 
important  law  both  for  its  mitigating  influence  as  compared 
with  the  laws  of  some  other  States,  and  because  it  became  the 
basis  of  similar  legislation  in  several  States,  notably  Kentucky, 
Arkansas  and  Illinois,  and  remained  in  force  until  the  com 
plete  close  of  the  slave  regime  in  Virginia.52  The  law  hence 
forth  made  no  practical  discrimination  between  the  negro  and 
the  mulatto,  and  the  courts  in  1849  confirmed  the  principle 
that  "  negro "  in  any  statute  should  be  construed  to  include 
u  mulatto  as  well  as  negro.v  53  Virginia  law  and  custom 
never  distinguished  the  separate  mestizo  or  "  mustee  "  class  so 
common  in  the  Carolinas.  This  was  the  joint  offspring  of  the 
negro  and  Indian,  and  in  the  Carolinas  was  subject  to  the  same 
disabilities  as  the  negro  and  mulatto.54  The  earlier  extinction 
of  the  Indian  in  Virginia  and  the  practical  close  of  Indian 
slavery  before  any  large  numbers  of  Indians  and  negroes  had 
been  brought  together  probably  explain  this  fact. 

In  the  North  the  sanctity  and  purity  of  white  blood  was 
guarded  by  similar  legislation.     Mulattoes  were  a  well-defined 


"Hening,  X1L,  184. 

62  See  the  Virginia  Law  of  1865;  cf.  Illinois  Session  Laws,  1827,  January 
6 ;  Arkansas  Laws,  1843,  January  20 ;  Kentucky  Revised  Statutes,  1852, 
sec.  7.  In  North  Carolina  a  law  of  1723  included  the  third  generation, 
and  the  law  of  1826  included  the  fourth  generation.  (North  Carolina 
Laws,  1723,  c.  5;  Revised  Statutes,  North  Carolina,  1826,  c.  21.)  The 
Tennessee  Law  (1794,  c.  1.,  sec.  32)  included  the  third  generation,  and  in 
Ohio  (1849)  the  uncertain  criterion  of  'nearer  black  than  white'  was  em 
ployed.  This  was  also  the  case  in  South  Carolina,  the  determination  being 
left  to  the  jury,  whose  range  of  discretion  lay  between  the  octoroon  and 
quadroon.  De  Bow,  Resources,  Vol.  11.,  p.  270. 

»3Grattan,  Reports,  XL,  484,  541. 

»4De  Bow,  Resources,  II.,  271 ;  South  Carolina  Statutes,  v.  8,  352;  Laws, 
1792 ;  North  Carolina  Laws,  1723,  c.  5. 


62  History  of  Slavery  in  Virginia. 

class  in  Connecticut  by  1690  and  in  Massachusetts  by  1698, 
and  were  treated  in  law  as  Indians  or  negroes.  Restraining 
acts  to  prevent  a  " spurious  and  raixt  issue"  as  early  as  1705 
and  1708  ordered  the  sale  of  offending  negroes  and  mulattoes 
out  of  the  colony's  jurisdiction,  and  punished  Christians  who 
intermarried  with  them  by  a  fine  of  £50.  As  late  as  1786  in 
Massachusetts  such  marriages  were  declared  void  and  the  £50 
penalty  was  still  exacted,  and  not  until  1843  was  this  act 
repealed.  Thus  was  the  color  line,  with  its  social  and  legal 
distinctions,  extended  beyond  the  conditions  of  servitude  and 
slavery  to  freemen,  in  the  spirit  of  the  Virginia  statute  of 
1668,  which  declared,  "though  permitted  to  enjoy  their  free 
dom,  yet  [the  enfranchised]  ought  not  in  all  respects  to  be 
admitted  to  a  full  fruition  of  the  exemptions  and  immunities 
of  the  English."65 

The  most  important  disabilities  incident  to  slavery  came  as 
a  result  of  the  developed  conception  of  property  in  the  person 
rather  than  in  his  service,  which  tended  completely  to  confound 
and  identify  the  person  of  the  slave  with  the  thing  owned. 
The  property  idea  inherited  from  servitude  had  reached  a 
limited  conception  of  personality  which  conferred  upon  the 
master  certain  rights  incidental  to  such  a  chattel  estate,  at  the 
same  time  that  it  subjected  it  to  the  rules  at  law  governing 
chattels  personal.  This  conception  involved  not  merely  legal 
forms,  but  important  disabilities  as  to  both  the  servant  and 
the  slave.  Thus  the  right  of  (1)  alienation,  either  by  will  or 
inter  vivos,  was  both  a  cause  and  a  consequence  of  the  property 
conception.  It  included  transfer  of  the  whole  or  part  of  the 
subject's  obligations,  for  valuable  or  other  consideration,  to 
other  persons  and  places  even  beyond  the  jurisdiction  of  the 
State.  So  also  the  disability  of  (2)  seizure,  involving  aliena 
tion,  was  a  liability  of  the  servant  and  of  the  slave  as  of  other, 
visible  property  to  be  taken  by  execution  for  the  satisfaction 


55  Moore,  Slavery,  52,  54,  59  ;  Massachusetts  Statutes,  1786,  June  22,  c.  3; 
1705,  c.  4 ;  Hening,  II.,  267. 


Development  of  Slavery.  63 

of  debt.  Other  legal  results  were  the  specific  valuation  and 
rating  of  servants  and  slaves  as  personal  assets  in  inventories 
and  appraisements  of  estates,  and  the  fact  that  they  passed 
with  the  personalty  to  the  executors  or  administrators,  and 
not  to  the  heirs  at  law,  of  intestates. 

By  the  time  of  the  codification  of  1705  it  was  found  neces 
sary  to  advance  the  property  notion  of  the  slave  from  per 
sonalty  to  realty  for  the  sake  of  justice  to  owners  and  heirs 
in  settling  and  preserving  estates.  The  change  was  almost 
wholly  for  legal  purposes,  and  in  only  a  few  instances 
hardened  or  extended  the  incidents  of  personalty  inherited  by 
slavery  from  servitude.  Had  the  conception  of  realty  been 
made  complete  it  would  have  tended  to  modify  for  the  better 
the  condition  of  the  slave,  somewhat  in  the  same  manner  as 
the  territorial  element  in  feudalism  acted  to  mitigate  the 
personal  servitude  of  the  English  and  French  villain  by  re 
stricting  alienation,  particularly  devise.56  The  chief  object  of 
the  act  was  to  protect  orphans,  widows  and  reversioners  in 
their  rights  by  saving  widow's  dowers,  and  preventing  a  defeat 
of  reversionary  interests  by  a  widow  or  widow's  husband  sell 
ing  dower  slaves  out  of  the  colony.  Slaves  descended  now 
not  as  movables  but  as  fee  simple  land  of  inheritance  to  the 
heirs  and  widows.  Dower  was  first  set  aside  and  the  rest  of 
the  intestate  estate  inventoried,  appraised,  and  given  to  the 
heir  at  law  to  divide  equally  amongst  the  children.  It  was 
here  that  the  incident  of  (3)  separation  of  families,  also 
involved  in  alienation,  was  made  capable  of  extension  until 
checked  by  law.  This  was  finally  done  in  1801  by  a  decree 
of  the  Supreme  Court  of  Appeals  which  declared  that  "  an 
equal  division  of  slaves  in  number  and  value  is  not  always 
possible  and  is  sometimes  improper  when  it  cannot  be  exactly 
done  without  separating  infant  children  from  their  mothers, 
which  humanity  forbids  and  will  not  be  countenanced  in  a 
court  of  equity,  so  that  a  compensation  for  the  excess  must  in 

M  Vinogradoff,  Villainage,  76;  Hening,  III.,  333-335,  371. 


64  History  of  Slavery  in  Virginia. 

such  cases  be  made  and  received  in  money." 57  The  right  to 
separate  husband  and  wife,  and  larger  children,  however,  still 
remained.  Even  before  the  law  of  1705  the  courts  had 
attempted  to  check  the  growth  of  this  incident  through  the 
right  of  devise  of  chattels.  Devises  of  children,  particularly 
of  children  not  in  esse  at  the  testator's  death  (devises  adjudged 
void),  were  declared  by  the  general  court  in  1695  to  be  neither 
"  convenient  nor  humanitarian,"  as  the  owner  of  the  mother 
would  not  be  careful  of  her  in  pregnancy  nor  of  the  child 
when  born, "  and  many  children  might  hence  die ;  and  besides," 
said  the  court,  "it  was  an  unreasonable  charge"  without 
benefit  to  the  owner  of  the  mother.  Such  cases,  however,  of 
devise  of  increase  continued  to  come  into  court  for  judgment 
or  to  force  compromise.58 

Important  legal  and  equitable  results  followed  the  concep 
tion  of  the  slave  as  real  estate.  Rights  varying  in  respect  to 
their  duration  or  to  the  time  of  their  enjoyment  were  created, 
and  the  various  freehold  estates,  such  as  estates  tail  (general 
and  special,  male  and  female) ;  estates  for  life,  and  pur  autre 
vie,  dower,  courtesy,  and  estates  upon  condition,  as  mortgage ; 
and  estates  less  than  freehold ;  as  well  as  rights  not  only  in 
possession  but  in  reversion  and  remainder ;  and  rights  not  at 
common  law,  such  as  uses,  were  recognized.  Slaves  were 
brought  within  the  provisions  of  the  English  Statute  of  Uses, 
and  together  with  lands  might  be  conveyed  to  uses.  Trusts, 
however,  often  operated  to  mitigate  their  condition  in  restrict 
ing  alienation.  The  object  of  entails  was  social  and  economic, 
that  slaves  might  pass  to  the  same  persons  as  lands  and  tene 
ments  and  furnish  them  the  necessary  means  for  the  improve 
ment  of  them  at  the  same  time  that  the  integrity  of  estates  was 
assured.  As  difference  of  opinion  existed  as  to  the  validity 
of  entails  where  slaves  were  not  specifically  annexed  to  lands, 


"Call,  Reports,  III.,  17,  52,  53.     Fitzhugh  et  ux.  vs.  Foote;  Stone  vs. 
Pope  et  at. 

»8  Jefferson,  Reports,  40,  43,  47. 


Development  of  Slavery.  65 

this  mode  was  prescribed  by  a  law  of  1727  covering  the  trans 
fer  of  estates,  "  tail,  in  possession  or  remainder,"  with  annexed 
"  slaves,  or  their  increase,"  saving  only  that  creditor's  rights 
were  protected  in  the  continued  liability  of  this  property  for 
debts.  This  developed  a  new  incident,  (4)  annexation,  which 
operated  in  a  manner  not  unlike  that  ascribed  to  the  principle 
regardant  in  villainage,  designed  to  tie  the  slaves  to  the  land. 
The  modes  of  the  acquisition  of  title  to  realty  which  included 
forfeitures  as  well  as  succession,  or  devolution,  and  alienation 
by  will,  deed,  marriage,  bargain  and  sale  were  now  applicable 
to  slaves.  Forfeiture,  however,  only  occurred  where  the  land 
and  tenements  of  the  person  might  be  forfeited. 

The  legal  effects  of  the  act  of  1705  were  at  first  regarded  as 
beneficial,  particularly  in  the  security  offered  to  the  estates  of 
orphans  whose  parents  died  intestate,  but  such  various  con 
structions,  contrary  judgments,  and  opinions  involving  con 
troversy  and  litigation  arose  that  in  1727  it  was  necessary  to 
pass  an  explanatory  act  amending  some  of  the  earlier  provi 
sions.  In  1705  slaves  had  been  specifically  left  as  personalty 
in  several  important  particulars.  As  chattels  they  were  still 
liable  to  be  taken  in  execution  for  debt ;  they  did  not  escheat 
but  went  as  other  personalty ;  were  recoverable  by  personal 
action  for  detainer,  trover,  or  conversion  ;  their  ownership  did 
not  confer,  as  that  of  real  estate,  the  franchise ;  and  it  was  not 
essential  that  their  transfer  be  recorded,  as  was  necessary  in 
the  alienation  of  realty.  This  last  point  gave  rise  to  a  dis 
pute  as  to  whether  it  was  confined  to  sale,  money  payment, 
and  transmutation  of  possession  without  writing,  or  whether 
it  extended  to  alienation  by  deed,  will,  and  marriage  which 
need  not  be  recorded.  The  act  of  1727  settled  the  issue  by 
recognizing  the  chattel  character  of  the  slave  as  to  alienation  by 
vesting  the  slaves  of  the  wife  absolutely  in  the  husband,  and 
by  passing  the  absolute  interest  by  bargain  and  sale,  gift  with 
or  without  deed,  or  by  will  written  or  non  cupative  in  the 
manner  of  personalty ;  and  henceforth  remainders  could  be 
limited  only  as  those  of  chattels  personal  by  rules  of  common 
5 


66  History  of  Slavery  in  Virginia. 

law.  The  act  further  secured  the  rights  of  widows  and  minor 
orphans  by  substituting  equitable  for  legal  procedure  in 
recovering  dower  or  forcing  partition.  This  in  1705  had  been 
hampered  by  the  tedious  real  actions,  writ  of  dower  and  writ 
of  partition,  not  so  well  adapted  to  living  things  as  a  bill  in 
equity,  and  by  allowing  a  widow  dissatisfied  with  her  hus 
band's  will  to  renounce  its  provisions  and  claim  her  dower, 
and  by  exempting  slaves  from  seizure  if  other  personalty 
existed  to  satisfy  debts.59 

The  legislation  outlined  established  such  a  mixed  property 
conception  of  slaves,  making  them,  in  the  words  of  the  Assem 
bly,  "  real  estate  in  some  respects,  personal  in  others,  and  both 
in  others,"  that  it  resulted  in  much  legal  confusion  and  litiga 
tion,  destroying  and  creating  titles,  involving  frequent  suits 
and  all  manner  of  doubts  and  varieties  of  conflicting  opinions 
as  new  and  undetermined  points  constantly  arose.  Such  un 
fortunate  and  unexpected  results,  defeating  the  real  ends  of 
the  enactments,  led  to  an  attempt  on  the  part  of  the  revisors 
of  1748  to  repeal  these  laws  and  enact  others  returning  to  the 
earlier  conception  of  the  slave  as  a  chattel  personal,  which  they 
regarded  not  only  as  simpler  and  more  beneficial  but  as  the 
natural  conception  of  the  slave  as  a  movable.  This  would 
have  enabled  children  to  share  with  the  elder  brother  in  the 
slaves  of  intestate  collaterals  and  would  have  stopped  annexa 
tions  for  entailment,  which  had  bad  practical  effects.  Just  as 
the  principle  "regardant  to  a  manor,"  as  Vinogradoff  has 
shown,  did  not  mitigate  the  condition  of  the  English  villain 
by  giving  him  rights  against  the  lord  to  prevent  his  being 


69  Herring,  IV.,  227,  228;  V.,  37,  443,  445.  By  1738  sheriffs  upon  writs 
of  fieri  facias  and  collectors  of  officers'  fees  and  levies,  in  making  distress 
had  done  so  much  damage  in  seizing  slaves  of  greater  value  than  the  debt 
that  they  were  hereafter  for  such  executions  limited  to  £10  or  over  in  value 
where  other  personalty  was  visible.  In  England  the  Court  of  Chancery 
gradually  assumed  jurisdiction  in  enforcing  partition  similarly  in  joint 
tenancy  upon  a  bill  filed  in  equity,  and  these  writs  were  abolished  in 
1833-34.  Statutes,  3  and  4,  Will.,  IV.,  c.  27,  536. 


Development  of  Slavery.  67 

shifted  from  pJace  to  place  or  from  predial  to  other  labor,  as 
was  the  case  with  the  colonus,  the  villain  of  the  later  Roman 
Empire,  who  was  ascriptus  glebae,  a  part  and  parcel  of  the 
estate,  and  could  not  quit  the  land — so  the  principle  of  annex 
ation  failed  to  bring  any  beneficial  effect  to  the  slave.     He 
and  his  increase  were  not  kept  upon  the  land  with  which  by 
will  or  deed  they  were  legally  bound  up  in  title,  but  were 
transferred  for  economic  reasons  to  other  lands  of  the  master 
in  different  counties  or  parts  of  the  colony  far  away  from  any 
record  of  their  annexation,  which  ultimately  might  be  wholly 
lost  sight  of.     This  practice  in  the  absence  of  genealogical 
registers  often  confused  fee  simple  with  entailed  slaves  of  the 
same  name  and  sex,  deceiving  purchasers  and  creditors  and 
destroying  foreign  credit,  upon  which  the  whole  trade  system 
of  Virginia  depended.60     While,  on  the  contrary,  if  the  slaves 
were  kept  on  the  lands  to  which  they  were  annexed  their 
increase  soon  so  overstocked  the  plantation  as  to  inflict  an 
unreasonable  damage  on  the  tenant  in  tail.     And  as  such 
slaves  were  liable  to  be  taken  in  execution  and  sold  for  debt, 
the  sale  acting  to  bar  the  entail,  it  encouraged  unscrupulous 
mesne  tenants  to  borrow  money,  run  into  debt,  and  sacrifice 
the  slaves  in  payment,  so  defeating  their  settlement. 

For  these  and  other  legal  reasons,  as  well  as  to  keep  estates 
together  by  allowing  the  heir  to  an  intestate's  land  to  buy  the 
slaves  of  the  other  children  at  appraised  values,  and  by  limit 
ing  the  widow's  allowance  to  a  life  estate  in  the  third  part  of 
an  intestate's  slaves  to  guard  against  dispersion  by  second 
marriage,  two  substitute  acts  were  passed  in  the  revisal  of 
1748,  to  go  into  effect  June  10,  1751.  These,  as  well  as 
eight  other  laws  passed  at  the  same  time,  were  repealed  by  the 
king's  proclamation  ou  October  31,  1751,  but  the  repeal  not 
being  communicated  to  the  Virginia  Assembly  until  April  8, 
1752,  they  had  a  limited  duration  and  were  printed  with  the 


60  Hening,  V.,  432-442  ;  Vinogradoff,  Villainage,  26,  55,  56  ;  Sohm,  Roman 
Law,  115. 


68  History  of  Slavery  in  Virginia. 

other  laws  in  1752.  The  Assembly  sent  an  urgent  appeal  to 
the  king  to  revoke  his  repeal,  but  only  two  of  the  ten  laws 
were  suffered  to  receive  the  assent  of  Governor  Dinwiddie  in 
1753.61  One  of  them  for  the  better  government  of  servants 
and  slaves  summed  up  all  the  previous  legislation  still  in 
effect  except  that  relating  to  property,  which  had  been  repealed. 
But  in  this  respect  the  condition  of  the  slave  remained  sub 
stantially  unchanged  from  1727  to  the  end  of  the  period  of 
British  domination,  when  in  the  first  Republican  Assembly, 
in  the  first  year  of  the  Commonwealth,  Jefferson  secured  the 
passage  of  his  bill  abolishing  entails,  which  made  all  donees 
in  tail,  present  and  future,  owners  of  the  fee  simple  estate  in 
lands  and  slaves.  This  was  designed  as  a  vital  blow  to  the 
perpetuity  of  a  social  aristocracy,  and  seems  to  have  had  a 
beneficial  effect  upon  the  slave  as  tenants  in  tail  were  dis 
posed  by  interest  to  use  slaves  to  their  greatest  advantage 
during  possession  without  a  proper  regard  for  their  care  and 
future  preservation  which,  however,  was  a  motive  that 
appealed  to  the  owner  of  the  fee  simple  estate.62  The  only 
important  exception  was  a  change  necessitated  by  the  frequent 
secret  gifts  of  slaves  for  fraudulent  purposes,  the  donor 
remaining  in  visible  possession,  by  which  creditors  and  pur 
chasers  were  involved  in  expensive  or  unsuccessful  lawsuits. 
By  acts  of  1757  and  1758  valid  gifts  could  only  be  made  by 
deed  or  will  duly  proven  and  recorded,  and  all  verbal  gifts 
had  to  be  reduced  to  writing  or  possession  delivered,  else  the 
gifts  were  void.  It  was  not  intended  to  make  writing  neces 
sary  where  there  was  actual  transmutation  of  possession  to 
the  donee,  which  was  a  common  mode  of  gift.  But  an  adju- 


61Hening,  V.,  432-448  and  note,  565;  IV.,  224;  Dinwiddie  Paper*,  I., 
29,  30,  39. 

63Hening,  VI.,  356;  IX.,  226;  Ford,  Jefferson,  I.,  49;  II.,  104,  105,  240. 
Pendleton  opposed  Jefferson  for  partial  abolition,  but  the  latter  won  by  a 
few  votes.  He  held  it  protected  creditors,  and  the  morale  of  young  pros 
pective  tenants,  and  saved  the  valuable  time  of  the  legislature  and  money 
in  defeating  and  docking  entails. 


Development  of  Slavery.  69 

dication  in  the  latter  part  of  the  century,  having  declared 
such  gifts  void,  so  disturbed  titles  that  an  act  of  1787  was 
necessary  to  specially  exempt  from  the  acts  gifts  of  donors  who 
delivered  possession  to  the  donee,  as  they  were  in  no  sense 
fraudulent  in  intent  nor  deceptive  in  influence.  Consequently 
the  restriction  of  alienation  involved  was  limited  in  its  effect. 

A  curious  result  of  the  conception  of  the  slave  as  a  subject 
of  property  was  developed  by  the  scarcity  of  specie  in  the 
years  1782  and  1783.  Slaves  and  land  were  made  to  take 
the  place  of  currency  to  relieve  debtors  as  well  as  creditors. 
•Slaves  were  declared  legal  tender  in  money  judgments  not 
exceeding  £20,  and  in  land  judgments  for  sums  not  over  £100. 
Like  the  laws  of  1705  and  1793 63  limiting  the  powers  of 
officers  of  the  law  to  make  unreasonable  seizures  of  slaves  in 
execution  for  debt,  a  law  was  passed  in  1792  exempting  them 
from  distraint  by  the  sheriff  and  tax  collectors  if  "  other 
sufficient  distress  "  could  be  had,  or  from  such  "  unreasonable 
seizures  or  distresses  "  as  would  render  them  liable  to  the  action 
of  the  party  grieved.  But  if  other  property  were  not  available 
a  creditor  might  seize  even  emancipated  slaves,  though  they 
had  enjoyed  their  freedom  for  many  years,  as  any  other  rule 
would  have  caused  emancipation  in  order  to  defeat  creditors. 
In  estates  less  than  freehold,  as  the  leasing  and  hiring  of  slaves 
was  common,  cases  often  arose  where  the  tenant  or  successor 
to  the  greater  or  less  estate  might  suffer  considerable  damage. 
In  the  case  of  a  lease  of  slaves  from  a  life  tenant,  for  instance, 
and  his  death  after  the  first  of  March,  the  lessee  was  to  hold 
the  slaves  till  the  first  of  December  of  the  following  year,  pay 
ing  for  the  time,  and  delivering  them  well  clothed.64 

The  complicated  cases  and  results  arising  from  the  concep 
tion  of  the  slave  as  both  realty  and  personalty  in  the  acts  of 
legislation  outlined  were  as  troublesome  and  confusing  to  the 

^Hening,  VII.,   118,   237;   XL,   179,   349;   XII.,   505,   506;   Virginia 
Statutes  at  Large,  I.,  47,  213. 

"Statutes  at  Large,  I.,  98,  1792  act. ;  Call,  Reports,  IV.,  336. 


70  History  of  Slavery  in  Virginia. 

courts  as  to  the  legislature.  Appeals  from  the  lower  courts 
were  frequent,  and  dissenting  opinions  were  constantly  being 
delivered  by  the  judges  of  the  highest  court,  calling  eventually 
for  fresh  statutory  legislation  to  settle  mooted  points.  The 
complexity  of  this  mixed  conception  was  not  wholly  cleared 
away  even  in  its  simplified  form.  Slaves  were  real  estate  as 
to  descent,  entails,  and  dower,  and  unlike  chattels  were  pro 
tected  from  distress;  but  they  were,  like  chattels  real,  not 
included  in  hereditaments  as  estates  of  inheritance,  and  also 
like  chattels  real  survived  to  the  survivor.  In  other  respects 
also,  they  were  personal  estate ;  they  were  assets  in  the  hands 
of  the  executor  and  liable  for  debt ;  they  might  be  sold,  sued 
for  or  taken  in  execution  as  chattels  personal;  they  were 
inventoried  and  appraised  and  they  did  not  escheat ;  wives' 
slaves  were  vested  in  their  husbands;  they  could  only  be 
given  or  bequeathed  as  chattels,  and  no  remainder  other  than 
that  of  a  chattel  personal  at  common  law  could  be  limited. 
The  evident  disposition  of  the  courts  in  their  decisions  was  to 
regard  slaves  as  far  as  possible  as  personal  estate,  which  was 
considered  their  natural  condition.65 

Probably  no  attempt  by  the  legislature  to  return  to  the 
simple  and  earlier  conception  of  slaves  as  personal  estate 
would  have  succeeded  during  English  domination,  but  not 
until  a  number  of  years  after  the  commonwealth  era  was  the 
change  actually  made  by  a  law  of  1792-93  reducing  the 
several  acts  concerning  slaves,  free  negroes,  and  mulattoes  to 
one.  This  law  saying,  "  All  negro  and  mulatto  slaves  in  all 
courts  of  judicature  shall  be  held  and  adjudged  to  be  personal 
estate,"  was  the  final  step  in  defining  the  conception  of  the  J 
slave  as  property,  and  in  fixing  his  resulting  disabilities. 
Dower,  strictly  speaking,  could  not  now  exist,  and  was  con 
verted  into  a  use  for  life  of  such  slaves  as  fell  to  a  widow's 


65  Hening,  V.,  440,  note ;  Jefferson,  Reports,  1,  5,  37,  125 ;  Washington, 
Reports,  II.,  1-7;  Call,  Reports,  II.,  473;  Ball  vs.  Ball,  Munford,  Reportsy 
III.,  283;  Ibid.,  II,,  501. 


Development  of  Slavery.  71 

share,  which  use  upon  marriage  was  disposed  of  to  the  hus 
band,  just  as  a  wife's  interest  in  personalty  was  vested  in  the 
husband  and  his  representatives. 

The  most  important  corollary  of  the  general  conception  of 
property  in  the  slave  was  that  as  a  subject  of  property,  as  a 
subject  of  rights,  he  could  legally  neither  own  nor  enjoy 
property  in  his  own  right.  This  added  a  distinct  disability 
to  his  legal  status  in  abridging  the  civil  right  of  (5)  private 
property.  A  limited  property  right,  not  unlike  the  Roman 
peculium,  was  allowed  the  slave  by  custom,  though  not  by  law. 
Masters  frequently  gave  them  horses,  cattle  or  hogs  for  free 
disposal  in  their  own  right,  and  the  negro  servants  reduppd  to 
slavery  in  1661  doubtless  were  possessed  of  property.  ^This 
right  was  taken  away  by  a  law  of  1692,  which  converted  such 
property  to  the  use  of  the  master,  and,  upon  his  neglect  to 
appropriate  it,  it  was  to  be  forfeited  to  the  parish  for  the  sup 
port  of  the  poor.  The  custom,  however,  of  masters  assigning 
to  slaves  such  property  for  management  as  peculium  continued 
in  spite  of  the  law,  and  extended  even  to  small  tracts  of 


ad  the  conception  of  property  in  the  slave  been  absolute 
it  would  have  wholly  divested  him  of  the  other  civil  rights  of 
personal  security  and  personal  liberty,  as  it  did  of  all  political 
capacity,  but  the  fact  of  natural  personalty  with  which  the 
slave  was  actually  endowed  was  not  lost  sight  of,  and  limited 
the  effect  of  the  property  notion  to  creating  certain  civil  dis 
abilities  rather  than  a  total  abrogation  of  rights.  Thus  (6) 
disfranchisementy  (7)  incapacity  for  office,  and  (8)  juridical 
incapacity  after  1732,  except  in  suits  for  freedom,  were 
regarded  as  incident  to  the  condition  of  slave,  while  a  servant 
and  a  free  person  of  color,  if  a  freeholder,  had  a  limited  enjoy 
ment  of  public  rights  in  the  franchise  and  the  ability  to  main 
tain  a  suit  and  to  bear  witness  legally.  The  disabilities  of  the 
slave  extended  even  into  the  domain  of  private  rights.  He 

66Hening,  III.,  103,460. 


72  History  of  Slavery  in  Virginia. 

was  denied  (9)  marriage  and  (10)  trade,  because  as  property 
he  could  not  choose  nor  make  a  contract.67 

The  law  did  in  some  respects  regard  slaves  as  a  distinct 
class  of  persons,  and  from  this  conception  and  its  limitation 
important  incidental  rights  and  duties  followed  as  the  master 
gradually  acquired  power  over  their  minds  and  bodies  as  well 
as  over  their  service.  As  persons,  like  male  whites  and 
Indian  servants  of  sixteen  years  of  age,  and  free  negroes,  all 
slaves,  male  and  female,  were  tithables  after  March,  1661, 
the  master  of  course  paying  the  levy.  This  liability,  which 
was  retained  upon  free  negro  females  up  to  1769,  was  inherited 
from  servitude.  By  the  acts  of  1779  and  1781  slaves  were 
still  liable  to  a  poll  tax,  of  £5  and  of  10  s.  respectively,  to  be 
paid  by  the  owner.  The  court  of  chancery  also  recognized 
the  personality  of  the  slave  by  permitting  persons  holding  a 
legal  estate  in  slaves  to  sue  in  equity,  although  a  remedy  at 
law  existed.  Slaves  were  held  to  be  not  property  only,  but 
"  rational  beings  and  entitled  to  the  humanity  of  the  court," 
which  in  decisions  took  into  consideration  the  mutual  attach 
ment  of  master  and  slave  and  its  value,  which  was  not 
recognized  by  a  jury.  The  chancellor  often  protected  freed- 
men  from  sale  under  a  creditor's  execution,  and  would  even 
enforce  a  contract  between  master  and  slave  which  had  been 
wholly  or  in  part  complied  with  on  the  part  of  the  slave. 
The  common  law  courts,  however,  refused  to  recognize  the 
contractural  ability  of  the  slave  and  might  reverse  any  such 


67Hemng,  III.,  252,  298;  IV.,  134,  327;  XII.,  182;  Virginia  Reports, 
Randolph,  VI.,  173;  Leigh,  I.,  172;  Grattan,  XIV.,  193.  Free  negroes, 
mulattoes,  and  Indians  were  disfranchised  in  1723  owing  to  insurrectionary 
troubles.  In  1732,  like  slaves,  they  could  only  bear  witness  in  the  trial  of 
a  slave  for  a  capital  offense,  and  by  the  law  of  1785  they  could  only  witness 
in  pleas  of  the  commonwealth  against  negroes  or  mulattoes.  By  the  code 
of  1705  negroes,  mulattoes,  and  Indians,  like  convicts  of  crime,  could  hold 
no  office  ecclesiastical,  civil,  or  military,  or  any  place  of  public  trust  or 
power  under  penalty  of  a  fine  of  500  pounds  of  tobacco,  and  20  pounds  per 
month  during  tenure.  Together  with  popish  recusants  and  non-Christians 
they  were  also  wholly  incapacitated  from  bearing  witness. 


Development  of  Slavery.  73 

decision.68  In  equity,  however,  the  slave  might  maintain  his 
suit  for  freedom  on  (11)  the  contractural  power  recognized  by 
his  master  to  that  end.  Masters  even  went  into  business  agree 
ments  with  slaves  granting  them  the  license  required  by  law  for 
freedom  of  movement  and  the  private  right  of  trade  in  con 
sideration  of  a  stipulated  payment  to  be  made  by  the  slave. 
The  slave  hired  himself  to  other  masters  or  otherwise  acted  as 
a  freeman.  As  this  became  in  time  a  public  nuisance  from 
the  premium  it  set  upon  theft  and  unlawful  practices  on  the 
part  of  slaves  forced  to  meet  their  obligations,  it  was  restricted 
in  1769  under  penalty  of  a  forfeit  of  £10  from  the  master  for 
every  such  license. 

The  law  also  recognized  (12)  the  personal  agency  of  the 
slave  and  held  him  personally  responsible  for  independent 
action,  except  where  it  was  shown  that  he  acted  under  order 
of  his  superior,  master  or  overseer.  This  is  shown  particularly 
in  the  course  of  penal  legislation.  In  perjury,  for  instance, 
the  slave  with  the  negro  and  mulatto  suffered  in  his  own 
person  in  the  pillory,  maiming,  and  whipping  in  lieu  of  fine 
and  imprisonment.69  The  slave  retained  like  the  free  negro 
and  mulatto  his  capacity  as  (13)  witness.  This  was  restricted 
by  an  act  of  1732  to  the  criminal  courts,  to  trials  of  slaves  for 
capital  offenses,  where  negro  evidence  was  often  of  value.  In 
1800  the  right  was  extended  to  include  free  negroes  as  well  as 
criminal  slaves.  The  personality  of  the  slave  as  well  as  of 
the  servant  was  again  recognized  in  his  specific  exemption 
with  certain  other  persons  from  (14)  militia  service,  the  exemp- 


wHening,  L,  306,  329,  356,  361,  454;  II.,  84,  296,  486;  IV.,  133  ;  VIIL, 
393;  X.,  12,  504;  Virginia  Reports,  Munford,  III.,  570;  Leigh,  I.,  73,  465. 

«9Hening,  III.,  451,  463;  IV.,  27;  Revised  Code,  1808;  II.,  147;  Hen- 
ing  and  Munford,  Reports,  II.,  6.  He  was  punished  by  whipping  when  no 
one  would  go  his  bond  for  the  fine  imposed.  See  "  Killing  deer  out  of  sea 
son,"  1705 ;  "  Hog  stealing,"  etc.  For  a  second  offence  in  hog  stealing 
whites  suffered  like  negroes  in  the  pillory,  and  had  their  ears  cut  off.  For 
a  third  offence  whites  and  blacks  alike  were  adjudged  felons  and  punish 
able  with  death. 


74  History  of  Slavery  in  Virginia. 

tion  being  based  upon  his  obligations  toward  his  master  and 
the  danger  of  putting  arms  into  his  hands.  Thus  also,  when 
free  negroes,  mulattoes,  and  Indians  were  enlisted  it  was  only 
for  servile  duties.  Slaves  were,  however,  employed  both  in 
the  Revolutionary  War  and  in  the  War  of  Secession.  For 
their  conspicuous  service  in  the  former  many  gained  their 
freedom,  and  the  project  of  raising  a  slave  army  by  the 
reward  of  eventual  freedom  was  advocated  and  adopted  by  the 
Confederate  Congress  only  too  late  to  become  an  important 
weapon  in  the  struggle.  By  an  act  of  1862,  the  Governor  of 
Virginia  was  authorized,  on  the  call  of  the  President  of  the 
Confederacy,  to  use  as  many  as  10,000  slaves  for  sixty  days' 
service  on  fortifications  or  defense.70  As  a  person,  also,  the 
slave  had,  by  a  law  of  1723,  the  right  of  (15)  notification  of 
disabilities.  This  right  presupposed  the  ability  of  choice  and 
an  independent  will  contrary  to  the  strict  Roman  conception 
of  a  slave.  The  legal  mode  of  notification  prescribed  was 
two-fold,  (1)  by  the  parish  church  wardens,  who  read  the  act 
twice  a  year,  in  April  and  October,  from  a  registered  copy,  in 
every  church  and  chapel  publicly  after  worship,  and  (2)  by  the 
sheriffs  of  each  county  yearly  at  the  county  court,  proclaiming 
it  from  the  court-house  door.  Both  officials  were  put  under 
heavy  penalty  for  the  faithful  discharge  of  their  duty,  which 
was  important  alike  to  master  and  to  slave.71 

The  personal  liberty  allowed  by  custom  on  holidays  and 
free  time,  like  Sundays,  was  not  restricted  by  law  until  1680, 
when  it  became  a  social  necessity  to  do  so  on  account  of  the 
rapid  growth  of  slave  population  and  the  danger  of  plots  and 


70Hening,  III.,  336;  IV.,  327;  V.,  245,  546;  VI.,  533;  XI.,  414; 
Statutes,  1800,  3,  43 ;  1862,  October  21  ;  1863,  p.  42.  In  1764  this  restric 
tion  on  bearing  witness  was  removed  from  free  negroes,  mulattoes,  and 
Indians,  and  they  were  allowed  the  right  in  all  cases,  civil  as  well  as 
criminal,  against  their  color.  In  1863  the  number  of  slaves  liable  to 
military  service  was  changed  to  5  per  cent.  In  such  cases  the  master 
received  remuneration. 

71Hening,IV.,  134. 


Development  of  Slavery.  75 

insurrections  if  slaves,  speaking  their  native  tongue,  unintel 
ligible  to  the  whites,  were  allowed  freely  to  congregate  and 
visit.  Hitherto  they  had  been  allowed  to  assemble  freely  at 
feasts  and  burials  as  was  their  custom,  and  to  absent  them 
selves  from  their  masters7  plantations.  Now  the  right  of  (16) 
free  movement  was  limited  upon  certificate  from  his  superior, 
master  or  overseer,  which  could  only  be  given  upon  special 
and  necessary  occasions.  Without  this  the  slave  could  not 
absent  himself  from  his  owner's  plantation  nor  could  he  carry 
any  weapon,  offensive  or  defensive.  This  was  made  to  apply 
also  to  marriage  and  trade  which,  were  allowed  within  limits, 
when  duly  sanctioned  by  the  master,  who  thereby  assumed 
any  civil  liabilities  that  might  arise.  No  legal  marriage  could 
be  made  between  whites  and  negroes,  however  sanctioned,  but 
a  slave  so  marrying  was  not  liable  to  punishment,  while  the 
white  persons  and  their  abettors  were.  This  is  a  case  where 
the  law  discriminated  against  the  white  in  favor  of  the  slave. 
The  same  was  true  in  the  case  of  persons  dealing  with  slaves 
who  had  not  their  superior's  license  to  trade.  The  slave  went 
unpunished  as  in  the  other  case,  on  the  presumption  that  he 
was  under  undue  influence,  but  the  other  party  was  liable 
criminally  and  civilly.  He  suffered  fine  or  imprisonment  or 
both,  or  corporal  punishment,  or  damages  equal  to  four  times 
the  value  of  the  article  bought.72 

The  slave  was  also  protected  in  a  limited  enjoyment  of  his 
right  of  (17)  personal  security.  The  duty  of  protection,  as  in 
feudalism  and  in  patriarchal  slavery,  was  a  recognized  obliga 
tion  of  the  master,  who  stood  between  his  dependent  and  third 
parties.  The  law  further  intervened  to  guarantee  protection. 
Maiming  a  slave  was  as  much  a  penitentiary  offense  as  maim 
ing  a  free  man.  Such  was  the  unanimous  decision  of  the 
General  Court  on  the  terms  of  the  act  of  1803,  which,  it  was 
declared,  protected  both  alike.  A  second  case  coming  into 


"Hening,  III.,  451,  452;  VI.,  360;  XII.,  283;  Statutes  at  Large  n.  s., 
II.,  329.     For  dealing  on  the  Sabbath  $10  additional  was  exacted. 


76  History  of  Slavery  in  Virginia. 

the  court  in  1827  was  dealt  with  in  the  same  way  on  the  basis 
of  the  law  of  1819,  and  the  offender  was  declared  a  felon. 
Strangers  had  no  authority  over  slaves  except  what  was 
assigned  by  the  master.  So,  when  slaves  were  hired  or  bound 
out  by  covenant  or  loaned,  conditions  were  attached  that  they 
were  to  be  treated  in  a  "  lawful  and  humane  manner/'  and 
specification  was  also  made  as  to  the  kind  of  employment, 
which  was  not  to  be  hazardous.  Even  if  such  stipulations 
were  not  attached  to  the  instrument,  they  might  be  assumed, 
as  the  bailee  was  not  regarded  as  vested  with  the  full  rights  of 
the  master.73 

Connected  with  this,  in  protection  both  of  the  master's 
property  and  the  slaves'  personal  rights,  the  offense  of  slave 
stealing  was  subjected  to  extreme  punishment  as  a  crime.  A 
law  of  1798  inflicted  the  penalty  of  death  without  benefit  of 
clergy  upon  the  thief,  but  after  the  construction  of  a  peniten 
tiary  this  was  commuted  to  imprisonment  from  3  to  8  years. 
Because  of  the  refusal  of  other  jurisdictions  to  recognize  prin 
ciples  of  extradition,  however,  it  was  impossible  wholly  to 
prevent  the  offense.  An  interesting  case  arose  in  1839,  where 
two  men  attached  to  a  New  York  schooner  stole  a  Virginia 
slave,  and  a  requisition  for  them  was  refused  by  Governor 
William  H.  Seward,  of  New  York,  on  the  ground  that  they 
had  not  committed  treason  or  felony  within  the  provisions  of 
the  United  States  Constitution,  which  did  not  embrace  State 
laws ;  that  there  was  no  such  crime  as  slave  stealing  in  common 
law,  as  slavery  was  not  so  recognized ;  that  New  York  had 
abolished  slavery  and  the  offense  was  a  crime  only  by  statute 
law  of  Virginia.  For  this  action  the  Governor  was  accused 
by  several  New  York  and  Massachusetts  papers  of  having 
infringed  not  only  a  precedent  of  one  of  his  predecessors  in 
office  but  also  a  decision  of  the  Supreme  Court  of  New  York, 
and  of  violating  a  provision  of  the  United  States  Constitution. 


73Grattan,  Reports,  XV.,  410;    Virginia  Cases,  I.,  184;  Randolph  Reports, 
V.,  661,  m.  3,  350;  5,  305,  483,  485;  Leigh,  Reports,  VIII.,  566. 


Development  of  Slavery.  77 

Another  process  by  which  like  results  might  be  accomplished 
was  the  secret  transportation  of  slaves  out  of  the  colony  by 
third  parties.  The  license  of  the  master  or  the  certificate  or 
pass  of  public  authorities,  secretary,  or  clerk  of  the  county 
court  was  necessary  in  1705  to  free  the  transporter  from  a 
penalty  of  £1 00.  Masters  of  vessels  clearing  poet  had  to  make 
search  and  give  oath  that  they  carried  no  such  slaves.  Trans 
portation  was  not  always  a  disadvantage  to  the  slave.  Many 
negro  slaves  escaped  on  certificates  of  registry  lent  them  by 
free  blacks,  and  this,  because  ship  masters  abetted,  became  an 
important  illegal  means  of  enfranchisement,  even  in  the 
eighteenth  century.  In  1805  the  master's  consent  was 
requisite  for  transportation  even  beyond  the  limits  of  the 
county  or  corporation,  and  breach  of  the  law  was  a  misde 
meanor  punishable  by  a  fine  of  from  $100  to  $500  and 
imprisonment  for  from  two  to  four  years,  together  with  civil 
liability  for  the  value  of  the  slave.  This  latter  feature  was 
afterwards  extended  to  the  operations  of  railway  companies.74 
The  most  grievous  incidents  of  the  condition  of  slavery 
were  a  direct  consequence  of  the  penal  legislation  essential  to 
protect  the  master  in  his  rights  and  to  ensure  peace  and 
security  in  the  community.  This  development  was  the 
inevitable  result  of  irresponsible  and  unregulated  action  in  the 
slave's  own  person,  and  in  general  it  applied  only  to  the 
criminal  classes.  The  property  right  of  the  master  involved 
control  over  the  slave's  person  and  power  of  regulating  his 
conduct  where  it  was  reprehensible.  The  means  employed  for 
this  purpose  was  in  the  nature  of  a  paternal  right  and  was 
common  both  to  English  servitude,  villainage  and  apprentice 
ship,  and  American  indentured  servitude.  Developed  as  an 
incident  of  servitude,  (18)  corporal  punishment  was  retained 
when  this  status  passed  into  that  of  slavery.  Humanity  and 


M  Virginia  Cases,  14  (June  26,  1792) ;  Statutes  at  Large,  United  States,  II., 
78,  148,  450  note;  III.,  123;  Richmond  Enquirer,  January  12,  1840;  Hen- 
ing,  III.,  270,  273  ;  IV.,  173-175  ;  IX.,  187  ;  Statutes  at  Large,  1819,  432. 


78  History  of  Slavery  in  Virginia. 

self  interest  were  at  first  supposed  to  be  sufficient  motives  to 
limit  the  extent  of  this  power  of  the  master  to  its  rational  use, 
but  when  they  failed  to  do  so  the  law  intervened.  As  a 
penalty  inflicted  by  the  State  for  certain  offenses ;  such  as  lift 
ing  his  hand  against  a  Christian  white,  keeping  arms  or  dogs, 
running  away,  absenting  himself,  and  various  offenses  within 
clergy,  it  was  limited  to  from  twenty  to  thirty-nine  lashes. 
It  was  presumed  with  this  example  that  masters  would  not 
exceed  the  maximum,  but  where  they  did  so  without  inflicting 
serious  personal  injury  the  slave  had  no  legal  remedy.  He 
was  protected,  however,  against  his  master,  as  well  as  against 
third  persons,  in  his  right  to  (19)  life  and  limb,  but  this  right 
was  abridged  in  the  case  of  obstinate  slaves  resisting  their 
masters'  correction,  as  violent  means  seemed  necessary  to  con 
trol  them.  ^By  an  act  of  1669,  if  such  a  resisting  slave  was 
casually  killed  in  consequence  of  correction  it  was  not  a  felony, 
and  the  master  was  "  aquit  of  molestation,"  said  the  law, 
"since  it  cannot  be  presumed^ that  prepensed  malice  (which 
alone  makes  murther  ffelony)  [should  induce  any  man  to 
destroy  his  own  estate.  J  The'prevalence  and  danger  to  society 
of  absconding  slaves  \red  to  an  extension  of  this  abridgment 
in  1672.  Prior  to  this,  runaway  servants  and  slaves  had 
been  treated  precisely  alike,  but  now  a  number  of  negroes 
being  in  rebellion  and  evading  suppression  it  was  made  lawful 
for  any  one  attempting  to  capture  runaways  by  warrant  or 
hue  and  cry  to  wound  or  even  kill  absconding  slaves  that 
resisted  arrest.  This  law  was  continued  in  1680,  1691,  and 
1701  from  fear  of  insurrection,  theft,  and  arson.  It  applied 
to  runaway  slaves  lying  hid  and  committing  depredations  who 
resisted  lawful  arrest,  and  the  act  was  to  be  published  every 
six  months  in  the  counties  and  parishes  to  serve  as  a  deterrent 
influence.  In  1701  a  notorious  slave,  Billy,  who  for  a  num 
ber  of  years  had  avoided  arrest,  terrorizing  the  counties  of 
James  City,  York,  and  New  Kent  by  his  robberies  and 
threats,  was  attainted  and  a  price  set  upon  his  head  of  1,000 


Development  of  Slavery.  79 

pounds  of  tobacco.75  By  the  code  of  1 705  outlying  slaves  who 
refused  to  heed  the  proclamation  of  the  county  justice  published 
at  the  door  of  every  church  and  chapel  of  the  county  on  Sun 
day,  warning  them  to  return  to  their  masters,  were  outlawed 
and  liable  to  be  killed  or  captured  by  any  person,  without 
warrant  or  further  accusation.  If  the  master  chose  to  apply 
to  the  county  court  to  punish  the  outlawed  slave  when  ap 
prehended,  it  was  in  its  discretion  to  order  punishment  "  by 
dismembering  or  any  other  way  not  touching  his  life  for  the 
reclaiming  of  any  such  incorrigible  slave  and  terrifying  others 
from  the  like  practice." 

The  menace  to  life  and  property  from  a  number  of  sources 
was  so  real  in  the  late  years  of  the  seventeenth  and  early  years 
of  the  eighteenth  centuries  that  it  is  not  surprising  to  find  the 
growing  rigor  of  general  penal  legislation  reflected  in  the 
treatment  of  criminal  slaves.  Militia  and  garrisons  had  to  be 
kept  in  constant  readiness  in  fear  of  the  Indian  outbreaks. 
People  went  to  church  under  arms.  Rebellion  against  the 
constituted  authorities  was  rife,  and  even  divine  service  was  not 
sacred  from  "  unseemly  and  indecent "  interruptions.  An 
intended  insurrection  of  negroes  discovered  in  the  Northern 
Neck  in  1687  particularly  alarmed  the  colonists,  as  the  negro 
population  at  this  time  was  about  equal  to  that  of  the  whites, 
and  the  unruly  convict  and  "  spirited  "  class  of  white  servants, 
which  had  for  many  years  been  giving  trouble,  were  equally 
dangerous.  Duties  had  no  appreciable  effect  in  checking  the 
importations  of  slaves,  which  after  1685  showed  alarming 
increase,  and  intended  insurrections  were  discovered  in  1710, 
1722,  and  in  1730. 

Practically  little  distinction  was  made  between  habitual  run 
away  servants  and  slaves.76  Slaves  were  included  in  the  acts 


75  Hening,  II.,  270,  299,  481 ;  III.,  86,  210, 457,  459  ;  IV.,  169 ;  VI.,  295 ; 
Revised  Code.,  1819,  II.,  288. 

76 Hening,  II.,  483,  484,  493,  562;  III.,  87,  456,  461;  IV.,  170,  171; 
Burk,  Virginia,  II.,  300;  Ballagh,  White  Servitude,  60 ;  cf.  the  Gloucester 
Plot  of  1663,  idem,  92. 


80  History  of  Slavery  in  Virginia. 

against  runaway  servants  after  1670  and  were  pursued,  cap 
tured,  and  punished  in  the  same  way.  They  were  whipped  to 
the  same  extent  as  servants,  and  were,  like  them,  if  unclaimed, 
imprisoned  or  hired  out  to  work  with  an  iron  collar  on  their 
necks  stamped  "  P.  G."  (public  gaol)  for  their  identification, 
and  were  branded  as  runaways  with  the  letter  "  E,."  But 
unlike  the  servant,  the  slave  was  not  liable  to  his  master  for 
damages  in  addition  to  punishment.  The  damage  sustained 
on  account  of  the  slave  was  paid  by  the  servant  in  whose 
company  he  ran  away.  In  the  earlier  days  fugitive  slaves  did 
not  generally  go  out  of  the  jurisdiction  of  Virginia,  but 
escaped  to  the  swamps,  the  woods  on  the  frontiers,  or  the 
Eastern  Shore,  where  they  remained  a  constant  menace  as  to 
depredations  and  insurrectionary  plots.  In  this  light,  restric 
tion  of  the  personal  liberty  of  the  slave  in  the  provisions 
against  bearing  arms,  and  against  assembling  or  absenting  him 
self  from  the  plantation  without  a  pass,  and  the  system  of 
espionage  which  grew  up  become  clear.  Any  one  who  allowed 
a  slave  to  remain  over  four  hours  on  his  property  without  such 
a  pass  was  liable  to  heavy  financial  penalties.  Actual  or 
incipient  criminality  also  explains  the  provisions  for  prevent 
ing  resistance  to  authority  and  assaults  upon  his  superiors, 
and  the  apparent  harshness  of  the  law  of  outlawry  and  of  the 
right  of  extreme  corporal  punishment  assumed  by  the  master. 
As  these  conditions  passed  away,  the  law  showed  a  tendency 
to  mitigate  its  rigor.  The  discretionary  right  of  dismember 
ment  was  taken  away  from  the  county  court  in  1769  as 
"  barbarous,"  and  the  power  of  two  justices  to  outlaw  was 
repealed  in  1792.7T 

The  right  of  life  and  death,  though  analogous  to  the  full 
poteslas  of  the  Roman  house-father,  never  reached  this  com 
plete  development  with  the  Virginia  master.  The  law  inter 
vened  to  give  the  slave  first,  a  limited  protection  against  his 


"Hening,  II.,  299,  481,  482;   III.,  459;    IV.,  169;   VIIL,  136,  358; 
Statutes  at  Large,  n.  s.,  I.,  125  ;  Revised  Code,  1819,  II.,  285. 


Development  of  Slavery.  81 

master,  and  finally  as  full  protection  as  any  other  person,  bond 
or  free.  Until  1723,  if  a  slave  chanced  to  die  under  or  in 
consequence  of  lawful  correction  it  was  viewed  as  merely  a 
lamentable  and  "  accidental  homicide."  An  act  of  that  year 
declared  such  killing  of  a  slave  to  be  manslaughter  only,  and  not 
liable  to  prosecution  or  punishment.  But  if  a  single  credible 
witness  affirmed  before  the  county  court  that  the  slave  was 
killed  "  wilfully,  maliciously,  or  designedly,"  the  perpetrator 
might  be  indicted,  and,  if  convicted,  punished  as  a  murderer. 
On  account  of  a  case  of  revolting  cruelty  in  the  murder  of  his 
slave  by  one  John  Huston,  which  came  up  at  the  December 
term  of  the  General  Court  in  1788,  in  which  the  offender  was 
convicted  only  of  manslaughter  by  the  jury,  and  so  went  scot 
free,  the  General  Assembly,  then  in  session,  was  induced  by 
members  of  the  court  to  repeal  the  law  of  1 723,  so  that  thence 
forth  the  killing  and  maiming  of  a  slave  were  punishable  as  if 
he  were  a  free  white  man.  There  was  nothing,  however,  to 
prevent  excessive  beating  of  a  slave  that  did  not  result  in 
death  or  maiming,  except  the  "  deep  and  solemn  reprobation 
of  the  tribunal  of  public  opinion,"  though  a  person  who 
cruelly  beat  a  horse  or  other  beast  was  subject  to  a  fine  of 
$50.78 

In  1850  another  case  of  cruelty  toward  a  slave  occurred 
that  had  an  important  effect  upon  the  law.  The  case  involv 
ing  beating  to  death  with  torture,  was  first  passed  upon  by  the 
Circuit  Court  of  Hanover,  which  sentenced  the  master  to  five 
years  in  the  penitentiary.  This  penalty  was  so  manifestly 
inadequate  to  the  offense  that  the  case  was  carried  up  to  the 
General  Court,  where  it  was  unanimously  adjudged  not  man 
slaughter,  but  murder  in  the  first  degree,  the  presiding  judge 
declaring  as  his  belief,  "  The  records  of  criminal  jurisprudence 
do  not  contain  a  case  of  more  atrocious  and  wicked  cruelty." 
In  this,  however,  he  was  mistaken.  A  case  similar  and  more 


"Hening,  IV.,  133;  XII.,  681;  Minor,  Institutes,  I.,    185;   Randolph, 
Xeports,  V.,  686;  Statutes,  1847-48,  p.  112;  1849,  740. 
6 


82  History  of  Slavery  in  Virginia. 

brutal  had  occurred  in  English  possessions  as  far  back  as  1811. 
Arthur  Hodge,  Esq.,  a  gentleman  by  birth,  was  tried  by  jury, 
condemned  and  hung  in  Tortola,  one  of  the  Virgin  islands,  for 
the  murder  of  several  slaves  by  whipping  them  without  inter 
mission  for  over  an  hour,  one  of  whom  was  lashed  to  a  tree 
when  he  could  no  longer  stand,  and  whipped  till  he  fainted, 
and  another  till  his  black  skin  could  not  be  seen.  They  were 
then  carried  to  the  "  sick  house  "  and  allowed  to  die  without 
medical  attention.  He  had  tortured  other  slaves  by  pouring 
boiling  water  down  their  throats,  eventually  causing  their 
death,  or  by  dipping  them  in  kettles  of  boiling  liquid  and 
burning  them  in  the  mouth  with  hot  irons,  and  by  inflict 
ing  successive  "cart-whippings"  at  "short-quarters,"79  or 
loading  them  with  heavy  irons  or  chains.  This  man  was  the 
owner  of  some  one  hundred  and  thirty  slaves,  most  of  whom 
had  experienced  his  cruelty.  This  special  example  in  Vir 
ginia,  however,  was  of  extreme  barbarity,  and  was  so  notorious 
that  homicide  of  a  slave  by  excessive  whipping  was  hereafter 
viewed  as  murder  in  the  first  degree  without  regard  to  the 
offender's  intent.80 

The  slave  was  a  legal  person  as  regarded  his  criminal  acts, 
and  had  the  same  liability  as  other  free  agents.  There  was, 
however,  a  discrimination  against  the  slave  to  his  disadvan 
tage  in  methods  of  punishment  and  procedure,  designed  to  act 
as  a  preventive  influence  upon  others  of  his  class.  Prior  to 
1692  slaves  guilty  of  capital  crimes  were  entitled  to  the  same 
procedure,  including  jury  trial,  as  free  whites.  But  the 
charges,  delay,  and  uncertainty  incident  to  this  method  of  the 
General  Court,  obstructed  prosecution  and  encouraged  such  a 
dangerous  increase  of  crime  that  it  was  found  necessary  to 
institute  a  special  tribunal  at  this  time  for  the  express  and 


79  Belisario  and  Hetherington,  Report  of  the  Trial  of  Arthur  Hodge,  Esquire, 
8-20,  135,  170-186.  In  this  punishment  the  whip  was  shortened  so  as  to 
go  around  the  whole  body,  striking  the  front  as  well  as  the  back. 

80Grattan,  Reports,  VII.,  673,  681. 


Development  of  Slavery.  83 

41  speedy  prosecution"  of  slaves.     The  criminal  was  to  be 
arrested  and  safely  imprisoned  in  the  county  jail,  and  the 
governor  upon  notification  of  the  committment  by  the  sheriff 
issued  a  commission  of  oyer  and  terminer  to  fit  persons  of  the 
county,  who  immediately  arraigned  and  indicted  the  offender 
publicly  at  the  court-house.     "  Confession  of  the  party,  or  the 
oaths  of  two  witnesses,  or  of  one  with  pregnant  circumstances," 
was  sufficient  evidence  to  convict,  and  judgment  was  passed 
without  the  intervention  of  jury,  and   execution    awarded. 
When  this  law  was  revised  in  1705  the  master  was  allowed  to 
appear  in  defense  of  his  slave  as  to  matters  of  fact  but  not  as 
to  technicalities  of  procedure,  and  he  was  indemnified  for  the 
value  of  the  slave   condemned.     In    1723   the   evidence  of 
negroes,   mulattoes,   or  Indians,  bond  or  free,  sustained  by 
pregnant  circumstances,  or  the  testimony  of  "  one  or   more 
credible  witnesses/'  was  sufficient  to  acquit  or  convict.     To 
deter  non-Christian  colored  persons  from  bearing  false  witness 
they  were  threatened,  before  giving  evidence,  with  the  pillory, 
loss  of  both  ears,  and  thirty-nine  lashes  upon  "  his  or  her  bare 
back  for  false  testimony."     By  the  revisal  of  1748,  ten  days 
respite   was    given    between    sentence   and    execution,    and 
unanimity  of  the  court  was  made  necessary  for  conviction.     If 
there  was  a  difference  of  opinion  the  result  was  acquittal.     In 
practice  the  commissions  were  generally  issued  to  justices  of 
the  peace,  but  as  a  separate  one  was  required  in  each  case,  and 
this  was  expensive  and  troublesome,  and  sometimes  involved 
the  difficulty  of  the  commission's  determining  before  the  judg 
ment  could  be  carried  into  execution,  a  law  of  1765  vested  the 
power  to  try  slaves  in  the  justices  of  the  county  courts  by  a 
general  commission  of  oyer  and  terminer  issued  with  that  con 
stituting  a  justice.     Any  four  or  more  of  the  justices,  one 
being  a  quorum,  constituted  the  court  and  had  jurisdiction  as 
before. 

In  the  latter  half  of  the  eighteenth  century  the  rigor  of  the 
criminal  code  was  greatly  diminished.  The  power  of  dismem 
berment  vested  in  the  county  court,  where  outlying  slaves 


84  History  of  Slavery  in  Virginia. 

could  not  be  corrected  by  other  means,  had  been  exercised  by 
inflictiug  castration,  first  upon  slaves  threatening  rape  and 
then  as  a  punishment  common  to  this  class,  whence  danger  was 
thought  to  come.  This  extension,  however,  was  resented  by 
public  sentiment,  as  "  disproportionate  to  the  offense  and  con 
trary  to  the  principles  of  humanity,"  and  the  ability  of  the 
county  court  to  order  castration  was  limited  to  cases  of  blacks 
convicted  of  an  "  attempt  to  ravish  a  white  woman." 81  One  of 
the  Revolutionary  bills  of  1779,  enacted  in  1786,  extended  the 
period  between  sentence  and  execution,  fixing  the  minimum 
at  thirty  days  as  in  the  case  of  white  men,  except  in  conspiracy, 
insurrection,  and  rebellion.  The  court  had  now  to  consist  of 
at  least  five  justices,  and  no  one  who  had  an  interest  in  the 
slave  could  be  a  member  of  it.  Unanimity  was  still  necessary 
for  conviction  and  only  undoubted  slaves  were  tried  without 
jury.  Any  slave  suing  for  his  freedom  was  prosecuted  and 
tried  as  a  free  man.  In  1790,  the  hustings  court  of  Rich 
mond,  composed  of  the  mayor,  recorder,  and  aldermen,  or  any 
five  of  them,  was  given  a  jurisdiction  like  that  of  the  county 
courts  over  slaves,  but  Williamsburg  and  Norfolk  were  denied 
this  right.  In  1797,  however,  magistrates  of  the  corporation 
courts  were  given  a  criminal  jurisdiction  as  to  slaves.  Before 
1792  no  exception  could  be  taken  to  the  trial,  but  thereafter 
it  could,  and  the  justices  were  obliged  also  to  allow  counsel  at 
the  master's  expense.  The  tendency  towards  mitigating  the 
legal  position  of  the  slave  was  further  shown  by  expunging 
from  the  code  at  this  time  everything  relative  to  the  outlawry 
of  slaves.82 

In  the  case  of  free  men  criminal  procedure  was  very  differ 
ent.  They  were  allowed  examination  before  the  court  of  the 
county  in  which  the  offense  was  committed,  and  acquittal  by 


81Hening,  III,  102,  103,  270;  IV.,  127,  128;  VI.,  105;  VIII.,  137,  138, 
S58;  Dinwiddie  Papers,  I.,  384.  Governor  Dinwiddie  says  the  indemnity 
was  "  an  encouragement  to  people  to  discover  the  villainies  of  their  slaves." 

82Hening,  XII  ,  345;  XIII.,  200;  Statutes  at  Large,  n.  *.,  II.,  78. 


Development  of  Slavery.  85 

it  was  final.  If  convicted  by  it,  the  concurrent  action  first  of 
a  grand  jury  with  the  agreement  of  twelve  jurors,  and  then  of 
a  petit  jury  of  the  county  by  unanimous  verdict,  was  necessary 
to  pronounce  one  guilty.  A  motion  in  arrest  of  judgment 
was  open  to  him  by  which  he  might  take  exception  to  the 
proceedings,  and  unanimity  between  his  judges  as  between  his 
jurors  was  necessary  to  condemnation.  In  some  cases,  also, 
in  punishment  free  men  secured  the  benefit  of  clergy  denied  to 
slaves  for  the  same  offense.  But  as  to  trial  the  main  differ 
ence  now  left  was  that  slaves  were  not  allowed  the  interven 
tion  of  a  jury.  As  Judge  St.  George  Tucker  has  well  shown 
this  was  not  a  disadvantage,  but  a  benefit.  A  court  of  five 
justices  was  more  select  than  an  ordinary  jury  of  the  county, 
and  far  more  likely  to  do  justice  to  the  slave.  Their  opinions 
were  given  "openly,  immediately,  and  seriatim,"  commencing 
with  the  youngest  judge,  and  if  a  single  one  favored  the  slave 
he  was  acquitted.  But  in  jury  trial  votes  were  secret,  and  a 
few  objectors  might  be  won  over  for  conviction  by  the  desire 
to  be  relieved  of  enforced  confinement.  Unanimity  of  the 
jury  was  not  only  necessary  for  conviction  but  for  acquittal,  so 
that  a  slave's  chances  of  escape  with  a  jury  as  ordinarily  con 
stituted  were  regarded  as  very  small.83 

As  to  punishment,  offenses  fell  into  two  distinct  classes — 
(1)  those  punishable  with  loss  of  life  or  limb,  chiefly  capital 
crimes,  and  (2)  those  punishable  by  whipping  in  lieu  of  fine 
and  imprisonment,  which  was  imposed  upon  free  whites ;  or 
by  pillory  or  mutilation,  common  in  certain  cases  to  whites 
and  blacks.  The  capital  crimes  by  the  code  of  1748  were  :  to 
plot  (1)  rebellion,  (2)  insurrection,  or  (3)  murder;  (4)  to  pre 
pare,  exhibit  or  administer,  without  the  order  or  consent  of 
superiors,  medicines  with  intent  to  poison ;  (5)  manslaughter, 
(6)  house-breaking  at  night,  (7)  burglary  of  20  s.  value,  (8) 
third  offense  of  hog-stealing  by  white  or  black.  These  were 


83  Tucker,  Blackslone,  appendix.,  55-63. 


86  History  of  Slavery  in  Virginia. 

declared  felony  without  the  benefit  of  clergy,  and  were  punished 
by  death.  A  crime  punishable  by  dismemberment  was  (9) 
attempted  rape.  Capital  crimes  within  clergy  were:  (1) 
administering  medicine  without  bad  intent  or  consequence,  as 
this  had  now  become  a  practice  dangerous  both  to  whites  and 
blacks  with  the  rise  of  the  negro  "  doctor ; "  (2)  manslaughter 
of  slave,  in  1764;  (3)  house-breaking,  not  burglary,  in  1772; 
and  (4)  by  1796  all  cases  which  applied  to  whites  except 
rebellion,  insurrection,  murder,  or  administering  medicine  with 
bad  intent.  Benefit  of  clergy  was  here  construed  to  substitute 
for  death  burning  in  the  hand,  and,  for  colored  persons,  whip 
ping  also  within  the  discretion  of  the  court.  Upon  a  second 
conviction  for  these  offenses  the  benefit  of  clergy  was  denied 
and  the  death  penalty  inflicted.  In  1775,  transportation  "  to 
any  of  the  foreign  West  Indies"  was  substituted,  where 
feasible,  as  a  humane  commutation  for  the  death  penalty  of 
slaves  in  arms  against  the  colony  or  in  the  possession  of  the 
enemy.  By  an  act  of  1801  the  governor  and  council  were 
empowered  to  sell  slaves  under  sentence  of  death  for  transpor 
tation  out  of  the  United  States,  the  transportation  acting  as  a 
reprieve,  except  that  if  the  criminal  returned  he  was  to  be 
executed.  The  courts  also  could  by  unanimous,  but  not  by 
majority,  verdict  order  transportation  in  lieu  of  conviction 
of  felony.  By  a  law  of  1847,  this  commutation  for  the  death 
penalty  by  sale  and  transportation  beyond  the  limits  of  United 
States  could  be  extended  at  the  discretion  of  the  court  to  all 
crimes  except  those  for  which  a  free  white  person  would  suffer 
death.  In  1857  the  governor  was  allowed  to  employ  such 
slaves,  in  lieu  of  immediate  sale  and  transportation,  upon  the 
public  works,  as  negro  convicts  were  employed.  By  a  law  of 
1805  several  additions  were  made  to  capital  crimes  raising 
their  number  to  ten.  To  wilfully  and  maliciously  "  set  fire  to 
a  barn,  stable,  corn-house,  or  other  outhouse,  or  to  be  acces 
sory  to  a  black  so  doing,  and  to  attempt  to  ravish  a  white 
woman  were  made  felonies  punishable  by  death.  To  burn  a 


Development  of  Slavery.  87 

stack  of  grain  or  hay,  however,  was  within  benefit  of  clergy 
and  punished  by  burning  in  the  hand  and  39  lashes.84 

The  chief  discrimination  against  the  slave  involved  in  pun 
ishment  for  capital  crimes  was  that  bare  intention  or  attempt 
to  commit  a  felony,  though  unsuccessful  or  not  resulting  in 
actual  breach  of  the  peace,  was  punishable  as  if  the  offense  had 
been  committed,  while  in  the  case  of  free  whites  intention  was 
not  punishable  as  it  was  in  the  case  of  slaves,  unless  the 
deed  were  committed.  An  attempt  against  the  virtue  of  a 
white  woman  by  a  free  white  was  a  high  misdemeanor,  not  a 
capital  crime.  Free  negroes  were  likewise  punished  by  con 
finement  in  the  penitentiary  for  three  or  more  years  for  many 
crimes  that  were  capital  in  the  slave. 

Crimes  of  the  second  class  in  the  nature  of  misdemeanors 
were  :  (1)  hog  stealing,  first  offense ;  (2)  unseasonable  killing 
of  deer,  if  on  the  slave's  own  responsibility ;  (3)  presence  at 
unlawful  meetings ;  (4)  going  abroad  without  leave ;  (5) 
carrying  offensive  or  defensive  weapons  or  ammunition  with 
out  permission  ;  (6)  raising  his  hand  against  a  Christian  white 
unless  wantonly  assaulted.  The  penalty  in  each  case  was 
corporal  punishment  upon  the  bare  back,  the  number  of 
lashes,  varying  from  ten  to  thirty-nine,  being  specifically 
stated.  Free  colored  persons  and  whites  received  like  punish 
ment,  though  a  fewer  number  of  lashes,  where  like  the  slave 
they  could  not  make  satisfaction  by  money  payment.  By 
1847  the  crimes  of  (7)  provoking  language,  as  well  as  a 
menacing  gesture  to  a  white ;  (8)  making  a  seditious  speech  ; 
and  (9)  selling,  keeping  or  administering  medicine  in  other 
families  without  consent,  were  specifically  added,  and  punish 
ment  was  not  to  exceed  thirty-nine  lashes  at  one  time.  A 
money  commutation  to  be  paid  by  any  one  for  the  slave  was 
suggested  by  the  revisors  of  this  law,  but  the  provision  was 
finally  stricken  out.  Crimes  somewhat  more  aggravated,  and 


"Hening,  VI.,  104-112,  122;  IX.,  106;  Statutes  at  Large,  n.  8.,  II.,  279; 
III.,  119 ;  Grattan,  Reports,  XV.,  561 ;  Code,  1849,  p.  753 ;  Code,  1860, 121. 


88  History  of  Slavery  in  Virginia. 

punishable  by  pillory  and  loss  of  ears  in  addition  to  whipping, 
were :  (1)  the  second  offense  of  hog  stealing,  and  (2)  false 
witness.  A  number  of  offenses,  however,  from  their  nature 
imputed  only  to  free  persons  in  their  relations  with  slaves  or 
others,  and  punishable  with  fine,  imprisonment,  stripes  and 
death,  the  slave  as  an  innocent  or  aggrieved  person  escaped. 
For  instance,  a  slave  went  unpunished  for  marriage  with  a 
white ;  nor  was  he  capable  of  forgery  or  treason  or  kidnapping 
and  selling  a  free  person  as  a  slave.  The  act  of  1865-66, 
which  abolished  slavery  and  servitude,  except  for  crime, 
repealed  all  the  laws  concerning  slaves  and  made  the  criminal 
laws  applicable  to  whites  apply  equally  to  colored  persons, 
except  where  "  otherwise  specially  provided." 85 

The  discrimination  against  the  negro  and  Indian,  slave  or 
free,  has  the  appearance  of  greater  rigor  than  actually  was  the 
case.  The  severity  of  the  punishment  was  designed  as  a 
deterrent  influence,  say  the  statutes,  and  judging  from  results 
it  was  remarkably  successful.  Speedy  trial  and  execution 
accomplished  legally  what  is  now  unsuccessfully  attempted 
through  the  methods  of  '  lynch  law.'  Dismemberment  and 
death  were  penalties  in  no  sense  comparable  with  the  crime  of 
rape,  yet  the  rarity  of  that  offense  during  the  slave  regime  is 
an  eloquent  commentary  on  the  success  of  the  principle  of 
absolute  subjection  as  applied  to  the  half  savage  African  and 
Indian.  During  the  troublous  times  of  the  first  three  years 
of  the  war  when,  if  ever,  the  slaves  would  seize  their  oppor 
tunity,  the  few  that  were  condemned,  executed  or  reprieved 
for  transportation  is  shown  by  the  appropriation  of  only 
$25,000  for  their  value.86 

The  harsher  discriminations  of  the  law  were  practically 
abolished  before  the  close  of  the  eighteenth  century,  and,  in 
the  opinion  of  the  two  most  distinguished  anti-slavery  leaders 


86  Tucker,  Slavery,  64,  65,  66;  Statutes,  1822-23.  p.  37;  Herring,  III., 
179,  180,  277,  662;  IV.,  108,  129,  266;  VI.,  108,  122;  Statutes,  1847-48, 
135,  126;  Code,  1849,  754,  note;  Kevised  Code,  1819,  II.,  16. 

86  Session  Acts,  1863,  p.  35. 


Development  of  Slavery.  89 

In  Virginia,  Thomas  Jefferson  and  St.  George  Tucker,  the 
previous  provisions  were  the  result,  not  of  inhumanity,  but  of 
"  those  political  considerations  indispensably  necessary  where 
slavery  prevails  to  any  great  extent."  They  felt,  too,  that  the 
treatment  of  American  slaves  was  "  milder  than  in  any  other 
country  "  where  there  were  so  many  slaves  or  so  large  a  pro 
portion  as  compared  with  free  persons.  Law  and  customary 
treatment  together  served  to  a  remarkable  degree  the  purpose 
of  preventing  that  large  growth  of  individual  crime  that  has 
come  with  this  class  of  population  in  its  free  condition,  relieved 
of  the  extraordinary  restraints  of  slavery  and  of  discrimination. 
The  rarity  of  the  appearance  of  the  slave  in  the  annals  of  the 
higher  crimes  in  comparison  with  the  whites  and  free  negroes 
is  conspicuous.  His  commonest  offenses  were  petty  crimes  or 
those  arising  from  the  collusion  or  influence  of  others,  such  as, 
absconding  or  insurrection,  in  which  whites  and  free  negroes 
often  played  the  chief  part.87 

Insurrection  was  more  of  an  anticipated  danger  than  an 
actual  one.  As  soon  as  negro  population  became  at  all  formid 
able,  energetic  measures  were  taken  to  prevent  the  possibility 
of  revolt,  and  they  were  largely  successful.  Though  a  num 
ber  of  attempted  or  supposed  conspiracies  were  discovered 
during  the  seventeenth  and  eighteenth  centuries,  no  actual 
insurrection  worthy  of  the  name  occurred  until  the  nineteenth, 
when  the  rigor  of  slavery  and  slave  legislation  was  past. 
Absconding  and  outlying  servants  and  slaves  or  assemblies, 
incited  and  aided  by  Indians,  whites — especially  convicts  and 
foreigners — and  free  negroes  were  a  convenient  nucleus  for 
combined  action,  and  for  this  reason  restrictive  and  punitive 
legislation  was  especially  directed  toward  them.  In  this  con 
nection  was  developed  a  system  of  police  patrol  known  and 
feared  among  the  negroes  as  the  "  Paterollers."  M 

87  Tucker,  Slavery,  67 ;  Jefferson,  Notes,  259. 

88  This  patrol  has  been  memorialized  in  the  negro  plantation  melody, 

"  Run  nigger,  run,  de  pateroller'll  ketch  you ; 
Run  nigger,  run,  till  ye  allmos  daid,"  etc. 


90  History  of  Slavery  in  Virginia. 

Slaves  were  freely  allowed  to  go  anywhere  with  their  masters' 
written  consent,  and  were  permitted  and  required  to  assemble 
at  church  on  Sundays  or  other  days  for  worship ;  but  their 
other  assemblies  at  feasts  and  burials,  and  during  the  holidays 
which  they  enjoyed  at  Christmas,  Easter,  and  Whitsuntide, 
when  left  to  themselves,  became  turbulent  and  had  to  be 
restricted  by  law.  The  militia  was  kept  in  as  efficient  and 
well  disciplined  a  condition  as  the  law  could  make  it  to  be  a 
threat  against  any  outbreak,  nor  was  it  withdrawn  in  force 
from  any  part  of  the  colony  in  the  early  days.  Arms  and 
ammunition  were  denied  the  dangerous  classes,  white  and  black, 
except  on  the  frontiers,  where  they  were  essential  to  protection. 

Between  1680  and  1726  there  were  a  number  of  scares  from 
negro  assemblies  or  plots,  and  in  the  latter  year  the  Assembly 
established  an  occasional  patrol  by  directing  portions  of  the 
county  militia  under  the  order  of  the  county  lieutenant,  when 
ever  need  arose,  to  disperse  unusual  concourses  of  negroes  or 
slaves  and  to  see  to  the  apprehension  of  criminals.  In  1738 
the  chief  officer  of  the  county  militia  was  empowered  to 
appoint,  toward  June  of  each  year,  a  yearly  patrol,  its  mem 
bers  to  be  paid  for  their  service  by  exemption  from  taxes. 
This  consisted  of  an  officer  and  four  militiamen,  who  at  proper 
times  visited  all  negro  quarters  as  well  as  "  other  places  sus 
pected  of  entertaining  unlawful  assemblies  of  slaves,  servants, 
or  disorderly  persons."  They  had  the  power  to  arrest  all  such 
persons  or  strolling  slaves  and  servants  without  passes,  and 
to  take  them  to  a  justice  to  be  whipped  not  exceeding  twenty 
lashes.  In  later  days  a  justice  of  the  county  court  appointed 
the  chief  officer  and  as  many  men  as  were  needed  for  a  patrol. 
They  made  a  written  report  to  the  court  every  three  months 
and  were  paid,  the  captain  one  dollar,  and  the  men  seventy- 
five  cents,  for  every  twelve  hours'  service.  The  patrol  was 
now  required  to  make  its  round  at  least  once  a  month.  In 
towns  the  corporation  courts  divided  the  city  into  wards  and 
appointed  one  or  more  captains  in  each,  requiring  the  patrol 
to  be  on  duty  at  least  once  a  week.  Another  function  of  the 


Development  of  Slavery.  91 

patrol  was  to  search  for  firearms,  and  when  acting  on  a  war 
rant  it  could  break  open  and  enter  the  houses  of  free  negroes 
and  of  slaves  in  the  absence  of  their  masters.  A  special 
patrol,  a  captain  and  three  men,  was  provided  for  by  an  act 
of  1855-56,  whenever  five  slave-holders  petitioned  the  county 
court  for  it,  to  recapture  fugitive  slaves.  It  was  paid  a  rea 
sonable  compensation  from  the  fugitive  slave  tax  and  the  master 
also  was  assessed,  according  to  distance,  from  $40  to  $100  for 
the  captive.89  When  the  slaves  escaped  to  a  great  distance 
special  methods  and  rewards  had  to  be  provided  for  their 
recovery,  and  these  in  the  absence  of  a  national  fugitive  slave 
law  were  not  often  successful.  A  reward  of  15  per  cent,  of 
the  value  of  the  slave  was  offered  for  those  returned  from 
Allegheny,  Washington,  and  Frederick  counties,  Maryland, 
and  25  per  cent,  of  his  value  if  returned  from  a  free  State. 
For  the  nearer  counties  on  the  Ohio  and  Potomac  10  per  cent, 
only  was  offered.  For  slaves  captured  in  Ohio,  Pennsylvania 
or  Indiana  a  reward  of  50  per  cent,  and  mileage  20  cents  a 
mile,  and  if  in  New  England,  New  York  or  Canada  $120. 
It  is  not  surprising  that  the  fugitive  slave  law  passed  by  Con 
gress  in  1850  was  strongly  urged  by  the  Virginia  legislature. 
The  rebellions  or  insurrections  of  slaves  were  all  local,  yet 
their  influence  upon  general  slave  legislation  was  not  confined 
to  Virginia,  but  showed  itself  in  the  restrictive  laws  of  a  num 
ber  of  slave  States.  The  incorporation  of  slaves  into  the  acts 
against  runaways,  the  provisions  against  outlying  slaves,  the 


"Hening,  III.,  87,  536;  IV.,  126,  202;  V.,  19;  Revised  Code,  1819,11., 
288;  Statutes,  1831-32,  19,20;  1839,  24;  1849,445;  1855,  38;  1860,795. 
Virginia  MSS.,  B.  R.  O.,  1694,  Nov.  5,  p.  206;  Ibid.,  Vol.  II.,  pt.  2,  p. 
579 ;  Ibid.,  Gooch  to  Lords  of  Trade,  17-4,  June  29 ;  Drysdale  to  Lords  of 
Trade,  1722,  December  20 :  Dinwiddie  Papers,  II.,  345,  474 ;  Byrd,  MSS.,  IT., 
240.  Gov.  Gooch  criticises  Sir  Wm.  Keith  for  advocating  in  his  history 
the  use  of  arms  by  slaves  and  servants,  saying,  "  by  the  use  of  arms  he 
exposes  their  throats  to  be  cut  by  their  slaves  or  by  a  worse  and  more  dan 
gerous  enemy,  the  shoals  of  convicts."  These  were  only  controlled  by  the 
terror  of  a  militia.  Gov.  Drysdale  said  to  the  Lords  of  Trade  in  1722  that 
severe  laws  were  the  only  means  of  preventing  insurrections. 


92  History  of  Slavery  in  Virginia. 

chief  restrictions  of  the  codes  of  1705  and  1 748  and  of  the  law 
of  1723  were  either  directly  or  indirectly  connected  with  the 
prevention  of  this  offense.  Any  number  of  negroes  or  slaves 
over  five  conspiring  for  murder  or  rebellion  were  declared  by 
the  law  of  1723  felons  punishable  with  death.  A  plot  by  a 
less  number  was  not  considered  to  be  a  conspiracy  worthy  of 
the  name  insurrection.  Of  such  conspiracies  which  might, 
but  for  fortuitous  circumstances,  have  become  insurrections  on 
a  large  scale,  only  two  occurred  in  the  history  of  Virginia. 
One  of  these,  known  as  Gabriel's  Attempt,  was  directed  against 
the  city  of  Richmond  in  1800,  with  the  design  of  seizing  the 
city  at  night,  killing  the  males,  dividing  the  females,  and  then 
arming  for  the  extermination  of  the  whites  throughout  the 
State.  It  was  planned  by  two  young  and  intelligent  negroes  ; 
Gabriel,  a  slave,  twenty-four  years  old,  and  one  Jack  Bowler, 
aged  twenty-eight,  neither  of  whom  had  an  especial  personal 
grievance  to  inspire  him.  They  organized  as  many  as  1,000 
negroes  in  Henrico  county,  arming  them  with  scythes  and 
knives,  and  marched  toward  the  city  during  the  night. 
Forced  to  halt  by  a  stream  swollen  and  impassible  from  a 
recent  storm,  they  disbanded,  expecting  to  renew  the  attempt 
on  the  following  night.  But  fortunately  their  plot  was  dis 
closed  by  a  slave  Pharaoh,  who  had  escaped  from  them  and 
aroused  the  citizens  of  Richmond  before  the  attack  could  be 
made.  A  reward  of  $300  was  offered  for  the  leaders,  Gabriel 
and  Jack.  They  were  caught  and  executed,  but  a  large  num 
ber  of  the  conspirators  were  mercifully  acquitted  or  the  charges 
against  them  were  dismissed  on  account  of  lack  of  evidence. 
This  plot  resulted  in  the  institution  of  a  public  guard  for  the 
city,  of  68  persons  under  a  captain  and  other  officers.90 


^Hening,  II.,  275,  481,  493 ;  III.,  86,  459 ;  IV.,  126, 128 ;  V.,  108 ;  XII., 
182  ;  Journal  House  of  Delegates,  1849-50,  p.  240 ;  United  States  Statutes, 
IX.,  462,  c.  60;  Dinwiddie  Papers,  Vol.  II.,  102,  JOS;  Howison,  Virginia, 
II.,  390;  Richmond  Examiner,  September  17  and  30,  1800;  Virginian, 
January  1,  1808 ;  Statutes  at  Large,  II.,  295,  296 ;  Order  Book,  Henrico 
County  Court,  No.  9. 


Development  of  Slavery.  93 

A  smaller  but  more  successful  attempt  than  this  was  that  of 
Nat  Turner,  a  well-educated  and  well-treated  negro  preacher 
of  Southampton  County,  in  1831.  He  was  looked  upon  from 
early  childhood  as  a  prophet  by  his  kindred,  and  by  flattery, 
omens  and  misconception  of  passages  of  Scripture  was  brought 
to  a  fanatical  state  of  mind  in  which  he  supposed  he  was  called 
upon  to  deliver  his  race  from  bondage.  His  chief  adherents 
and  organizers  were  Hark  and  Will,  fellow  slaves,  and  Artis, 
a  free  negro.  Starting  with  some  four  or  five  persons,  armed 
with  only  a  hatchet  and  an  axe,  the  band  rapidly  grew  by 
impressment  as  the  raiders  advanced,  or  as  runaways  joined  it, 
to  twenty  negroes,  and,  finally,  to  forty.  They  seized  horses 
and  arms  at  the  various  places  visited,  and  from  Sunday  night, 
to  noon  of  the  following  day  they  terrorized  without  serious 
opposition  the  whole  country  side.  The  most  cruel  murders, 
of  men,  women,  and  children  were  committed  in  their  rapid 
house-to-house  advance  toward  the  county-seat,  but  strange  to 
say  only  a  single  well  authenticated  case  of  attempted  viola 
tion  of  a  female  occurred.  Some  sixty  persons  were  killed. 
People  were  taken  utterly  by  surprise ;  their  houses  were  open 
as  usual  in  the  hot  summer  nights,  and  most  of  the  males  in 
the  county  were  absent  at  a  religious  meeting  in  North  Caro 
lina.  But  as  the  alarm  spread  the  whites  quickly  raised  a 
sufficient  force  to  check  the  advance  and  prevent  the  escape  of 
the  negroes  to  the  Dismal  Swamp.  Most  of  the  raiders, 
including  Nat,  were  finally  captured.91  A  most  impartial 
trial  was  given  to  all,  except  a  few  decapitated  at  Cross  Keys, 
admitting  not  only  negro  and  slave  testimony,  as  usual  in 
criminal  trials  of  slaves,  but  even  the  testimony  of  members 
of  the  band  in  their  own  behalf.  Many  escaped  punishment 
by  help  of  their  masters  or  because  they  had  been  forced  to 
join  the  raiders.  Twenty-one  were  convicted  and  condemned, 


91  Richmond  Enquirer,  August  30,  1831 ;  Richmond  Whig,  September  26, 
August  29,  1831 ;  Norfolk  Berald,  1831 ;  Howison,  Virginia,  II.,  439. 


94  History  of  Slavery  in  Virginia. 

but  only  thirteen  were  executed.  None,  not  even  Nat,  testi 
fied  that  cruel  treatment  had  been  a  cause  of  the  insurrection.92 
[it The  consequences  alarmed  not  only  the  other  counties  of 
the  Black  Belt,  but  the  whole  State,  and  neighboring  slave 
States,  even  to  Louisiana.  It  was  thought  in  the  excited 
state  of  public  feeling  that  it  was  only  a  part  of  a  wide-spread 
slave  revolt,  but  it  was  purely  local.  Governor  Floyd,  think 
ing  that  influence  had  come  from  other  States,  urged  a  revision 
of  slave  laws  and  the  expulsion  of  the  free  blacks.  The  slave 
trade  was  restricted  by  several  Southern  States  and  a  number 
of  farmers  emigrated.  In  a  desire  to  get  rid  of  negroes  the  { 
questions  of  emancipation  and  colonization  were  brought  up  j 


93  Fanaticism  followed  the  mental  aberration  of  Nat  which  was  brought 
to  a  climax  by  an  eclipse  and  the  consequent  peculiar  appearance  of  the 
sun,  and  he  "conjured,"  as  the  negroes  say,  his  followers  by  means  that 
readily  appealed  to  their  ignorance  and  superstition,  such  as ;  "  hierogly 
phics,"  "  numbers,"  and  "signs  written  in  blood." 

The  effect  of  even  ordinary  solar  phenomena  upon  negro  intelligence  is 
well  illustrated  by  the  following  occurrence,  quoted  from  the  Baltimore  Sun, 
May  13,  1899 :  "  Richmond,  May  12.  A  rare  sight  was  presented  here 
to-day.  For  several  hours  concentric  rainbows  of  great  brilliancy  surrounded 
the  sun.  Between  the  luminous  circles  rested  dense  clouds,  and  all  was  bright 
without  the  outer  circle.  It  inspired  admiration  in  the  eyes  of  intelligent 
people,  but  the  ignorant  were  deeply  affected  with  fear.  For  hours  the 
people  stood  in  the  streets  watching  the  beautiful  phenomena  with  the 
naked  eye  and  smoked  glass.  Many  colored  people  experienced  great  fear, 
and  the  Rev.  John  Jasper  [a  noted  negro  divine],  whose  opinions  on 
planetary  movements  stand  higher  with  them  than  any  other  authority, 
was  asked  by  members  of  his  flock  to  interpret  the  sign  in  the  heavens. 
The  old  philosopher,  now  eighty-seven  years  old,  is  nearly  blind  with  age. 
He  listened  attentively  to  the  description  of  the  solar  halo,  and  after  a  few 
seconds  of  deep  meditation,  said  :  '  It  is  a  sign  God  has  placed  in  the  sky  to 
warn  the  people  of  his  wrath  to  come.  Wickedness  is  increasing,  and  the 
way  most  people  are  carrying  on  is  simply  scandalous.  The  Bible  says 
strange  sights  shall  appear  in  the  sky,  and  I  believe  this  is  one  of  them.' 
His  flock  breathed  easier  when  the  sun  reached  the  meridian  and  the 
phenomena  disappeared." 

For  a  complete  and  interesting  account  from  fuller  sources  of  the  South- 
hampton  or  Nat  Turner  insurrection  see  Dr.  W.  S.  Drewry's  The  South 
ampton  Insurrection. 


Development  of  Slavery.  95 

in  the  next  legislature  of  Virginia,  but  were  decided  adversely, 
and  stringent  legislation  was  enacted  against  meetings  and 
education  of  slaves,  particularly  of  preachers,  and   against 
inciting  revolts.     To  advocate  rebellion  by  means  of  writing 
or  printing  was  made  a  penitentiary  offense,  and  to  express  the 
opinions  that  masters  had  no  right  to  their  slaves  was  punished 
by  a  fine  of  $500  and  one  year  in  jail.     To  advise  conspiracy 
was  treason  against  the   State  and  the  penalty  was  death. 
Another  direct  result  of  this  revolt  was  the  revisal  of  the 
provision  of  the  act  of  1830-31,  that  no  white  be  allowed  to~| 
assemble  slaves  to  instruct  them  in  reading  and  writing,  by  1 
the  addition  of  amendments  against  the  preaching  of  slaves  or  K 
of  free  negroes,  and  forbidding  them  to  attend  religious  meet-   \ 
ings  at  night  without  permission. 

So  in  these  last  days  of  slavery  was  added  another  legal 
incident  to  their  condition,  i.  e. ;  (19)  non-instruction  in  the 
elements  of  secular  education.  The  right  to  (20)  religious 
instruction  was  not,  however,  seriously  restricted  by  either  law 
or  custom.  An  act  of  1804  defining  unlawful  meetings  of 
slaves  had  included  night-meetings  at  places  of  worship  as 
dangerous  on  account  of  plots,  but  as  the  effect  of  this  was 
thought  to  infringe  the  "  religious  rights  "  of  slaves  in  exclud 
ing  them  from  night  preaching,  often  customary,  an  act  was 
passed  at  the  next  session,  January  4,  1805,  allowing  slaves 
to  go  with  any  member  of  the  family  of  their  owners  to  any 
religious  service  conducted  by  an  ordained  white  minister  or 
by  a  layman.  A  master  also  was  allowed  to  employ  any  free 
person  to  give  religious  instruction  to  his  slaves  or  he  gave 
them  written  consent  to  go  elsewhere  for  it.  Prior  to  1804, 
meetings  at  church  on  Sunday  or  any  other  day  to  attend 
service  had  been  specifically  exempted  from  the  list  of  unlaw 
ful  meetings.  Another  legal  right  of  the  slave  was  (21)  sup 
port  and  protection.  In  general,  custom  was  a  sufficient 
guaranty  of  this  right,  but  the  law  intervened  to  establish 
fully  the  master's  obligation  and  to  prevent  its  being  shifted 
upon  the  State  in  the  case  of  old,  infirm,  and  disabled  slaves. 


96  History  of  Slavery  in  Virginia. 

Medical  attention  and  nursing  for  the  sick  were  recognized 
duties,  and  if  old  and  infirm  slaves  were  given  away,  sold  or 
freed  to  escape  their  charge  the  county  justices  could  proceed 
against  either  the  seller  or  the  donee  for  the  support  of  the 
slaves.93 

The  legal  condition  of  the  slave  resulting  then  from  this 
legislation  finds  its  analogue  not  so  much  in  ancient  slavery 
or  in  European  serfdom,  both  of  which  were  harsher  in  their 
incidents,  as  in  the  institution  of  mediaeval  villainage,  par 
ticularly  that  of  England,  which  as  regards  services,  punish 
ment,  property,  and  personal  incidents  applying  to  an  upper 
class  of  non-free  men  was  strikingly  like  slavery  as  developed 
in  Virginia  and  some  other  American  States. 

Social  Status  of  the  Slave. — Customary  institutional  develop 
ment,  in  general,  precedes  and  is  a  source  of  legal,  but  as  on 
the  one  hand  law  may  originate  new  incidents,  so  many  cus 
tomary  practices  may  continue  without  the  sanction  of  law  or 
even  in  direct  contravention  of  legal  provisions.  Frequently 
such  practices  as  are  sanctioned  at  the  bar  of  public  opinion 
tend  to  exert  a  mitigating  influence  upon  the  condition  of 
dependents,  but  in  cases  they  may  and  have  assumed  a  harsher 
character  than  is  consistent  with  principles  of  law  and  human 
ity,  and  require  the  restraining  influence  of  the  courts  or  of 
the  legislature.  As  regards  slavery,  a  customary  status  thus 
arose  from  the  practical  exercise  by  the  ruling  class  of  powers, 
authorized  but  not  enjoined  by  law,  and  from  customs  in  accord 
or  even  contrary  to  the  spirit  of  the  law,  a  status  that  was  dis 
tinctly  marked  from  the  strict  legal  one  defined  by  positive 
legislation. 

The  separation  between  these  two  conditions  of  the  slave 
was  analogous  to,  but  not  so  extensive  as,  that  developed  also 


93  Statutes  at  Large,  n.  s.,  1804,  p.  108;  1805,  p.  124;  Hening,  IV.,  129  ; 
Virginia  Code,  1860,  p.  510. 


Development  of  Slavery.  97 

in  the  practical  treatment  of  white  servants,94  for  two  import 
ant  reasons.  The  first  was  the  inferior  race  and  religion  of 
the  negro,  mulatto,  and  Indian  servant  or  slave  which  sepa 
rated  this  class  socially  by  a  more  impassable  barrier  from  the 
mass  even  of  the  whites  than  mere  legal  status  would  have 
done.  The  second  was,  that  slaves  were  not  to  any  extent  at 
first  recognized  as  a  source  of  eventual  or  possible  free  men, 
who  with  their  new  status  and  citizenship  might  demand  j^ 
social  as  well  as  legal  equality.  When  this  probability  arose, 
considerations  of  race  purity  and  inferior  civilization  were 
strong  enough  to  refer  the  free  colored  person  to  a  social  status 
practically  identical  with  that  of  the  slave  and  to  a  legal  status 
similar  in  many  of  its  disabilities  to  slavery.95  Its  tendency, 
too,  was  to  define  more  strictly  caste  distinctions  and  to 
increase  the  social  and  legal  disabilities  of  the  slave. 

In  custom  the  conception  of  the  personality  of  the  slave 
tended  to  supplant  that  of  property,  and  was  recognized  to  a 
far  greater  extent  than  accorded  with  the  strict  letter  of  the 
law.  The  slave  was  here  viewed  as  a  human  being  possessed 
of  like  emotions,  desires,  and  ambitions  as  free  men  and  whites, 
many  of  which  might  be  reasonably  gratified  without  impair 
ing  any  obligation  of  service  due  the  master.  Even  practices 
in  which  damage  was  a  possible  or  even  certain  result  to  the 
property  element  found  a  continuing  sanction  in  custom.  The 
common  recognition  of  marital  and  family  rights,  for  instance, 
was  the  outgrowth  of  a  sentiment  of  humanity  rather  than  of 
economic  interest.  That  the  ties  so  established  were  always 
accorded  the  full  recognition  they  deserved  is  by  no  means 
true,  but  their  existence,  even  when  hampered,  distinctly 
mitigated  the  conditions  of  slavery.96  So  also  slave-breeding, 


94  Cf.  Ballagh,  White  Servitude,  68  et  seq. 

95  Chastellux,   Travels,   II.,  190,  200;   Kevised   Code,  Supplement,  234, 
244,  246,  247 ;  Leigh,  Reports,  IV.,  652. 

96  Call,  Reports,  II.,  17,  Fitzhugh  et  ux.  vs.  Foote;  Hening,  III.,  334; 
IV.,  21 ;  h?mith,  Philosophy  and  Practice  of  Slavery,  314. 

7 


98  History  of  Slavery  in  Virginia. 

however  unfortunate  some  of  its  applications  may  have  been, 
had  its  origin  in  humanity.  Its  development  prevented  the 
introduction  of  the  barbarous  practice  of  the  Spanish  West 
Indies,  where  marriage  was  denied  because  it  was  cheaper  to 
import  slaves  than  to  raise  them.  The  abuse  of  breeding  in 
the  prostitution  of  female  slaves  was  not  only  lessened  by 
heavy  legal  and  social  penalties,  but  met  a  natural  check  in 
the  density  of  population,  whose  increase  even  the  domestic 
slave  trade,  a  necessity  for  the  existence  of  slavery  in  the  old 
States,  was  unable  to  prevent.  The  desire  to  procreate  slaves 
when  they  were  cheap  was  anything  but  economic  in  cause  or 
effect.  The  damage  to  service  in  child  bearing  and  the  cost  of 
rearing  the  infant  was  viewed  as  involving  a  net  loss,  and  as 
one  of  the  burdens  incident  to  a  human  slave  system.  It  was 
upon  this  economic  ground  that  conscientious  anti-slavery 
slave-holders  were  wont  to  base  their  strongest  arguments. 
Slave-breeding  in  the  opprobrious  use  of  the  term  probably 
had  an  extensive  existence  with  a  certain  class,  which  was 
governed  neither  by  economic  nor  moral  considerations,  but 
as  this  class  is  usually  small  in  any  civilized  society  and  as 
historic  evidence  shows  its  limited  extent  in  Virginia,  the 
offense  was  kept  within  bounds  by  public  sentiment  and  legal 
penalties. 

The  disposition  on  the  part  of  the  upper  classes  to  recognize 
their  wardship 97  of  the  dependent  is  very  marked,  but  duty 
was  not  the  only  tie  that  bound  the  master  to  his  slave. 
Mutual  affection  often  characterised  the  relation.  The  property 
element  in  the  slave  was  not  until  the  later  days  of  the  institu 
tion  regarded  as  a  speculative  value.  A  master  generally  sold 
his  slaves  only  when  they  were  unruly  or  worthless  or  when 
he  was  too  poor  to  keep  them.  Like  that  of  land  and  stock, 
the  accumulation  of  slaves  tended  constantly  to  exceed  the 
limit  of  true  economy.  They  were  the  badge  of  social  distinc 
tion,  and  rank  followed  acres  and  servants  more  closely  than 

97  Smith,  Philosophy  and  Practice  of  Slavery,  278-328. 


Development  of  Slavery.  99 

financial  solvency.  A  gentleman  might  often  be  a  bankrupt, 
but  he  must  have  slaves,  and  the  last  thing  he  parted  with  to 
discharge  his  obligations  of  honor  were  his  mahogany,  his 
dependents,  and  his  habits.  Many  families  in  the  agricultural 
depression  of  the  last  decades  of  the  first  half  of  the  nineteenth 
century  were  bankrupt  by  their  slaves,  whom  they  could  not 
in  the  slave's  interest,  or  would  not  for  their  own  convenience, 
turn  into  cash  from  the  slave  dealer.  This  feeling  was  fully 
reciprocated  by  the  slave.  "  There  are  hundreds  of  slaves," 
said  a  distinguished  professor  of  William  and  Mary  College, 
"  who  will  desert  parents,  wives  or  husbands,  brothers  and 
sisters  to  follow  a  kind  master." 5 

The  tie  of  master  and  servant  (slave)  was  looked  upon  as 
second  only  to  that  of  husband  and  wife,  parent  and  child, 
brother  and  sister.  In  the  Southampton  insurrection  many 
armed  their  slaves  for  their  defense,  and  in  several  instances 
the  whites,  especially  women,  escaped  only  through  the  help 
of  slaves.  Notably  at  one  place  the  slaves  resolutely  opposed 
Nat  Turner's  gang,  declaring  they  would  "  lose  every  drop  of 
blood  in  defense  of  their  master  and  his  family."  Even  at 
this  time  the  slaves  were  felt  to  be  generally  well  affected  and 
faithful  to  their  masters,  and  the  nobility  of!  those  who  risked 
their  lives  for  their  white  masters  received  appropriate  public 
recognition.  In  view  of  the  sectional  feeling  displayed  in  the 
heated  debate  on  the  Foot  Resolution,  Senator  Smith,  of  Vir 
ginia,  said  that  in  an  emergency  he  would  rely  solely  upon 
his  own  slaves  for  his  defense.  The  testimony  of  those  who 
took  part  in  the  famous  debate  in  the  Virginia  assembly  in 
1831-32  on  the  emancipation  of  slaves,  when  the  anti-slavery 
leaders  put  forward  their  strongest  arguments  against  the 
institution,  bears  witness  to  this  mutual  attachment,  and  to 
the  kind  treatment  and  abundant  support  given  the  slave. 
Many  a  slave  passed  through  life  without  ever  having  had  a 
blow  from  master  or  overseer;  and  in  the  western  parts  of 

98  Dew,  Debate  of  1831-32. 


100  History  of  Slavery  in  Virginia. 

Virginia,  a  grazing  country  where  slaves  were  not  so  numerous 
as  in  the  eastern  counties,  they  were  treated,  and  acted,  more  like 
day  laborers  than  slaves,  enjoying  as  many  comforts  and  as 
much  spare  time  as  fell  to  the  lot  of  the  poor  whites." 

The  institution  in  many  respects  was  then  patriarchal.  The 
slave  was  a  member  of  the  family,  often  a  privileged  member. 
His  master's  goods  and  honor  and  prosperity  were  his  own. 
He  could  not  steal  from  his  master,  but  only  appropriated 
articles  legitimately  to  his  use  as  necessity  arose.  This  habit, 
unchecked  by  indulgent  masters,  in  some  degree  explains  the 
moral  obliquity  of  the  ordinary  negro  in  petty  theft.  The 
master  was  the  supporter,  director,  defender  of  his  dependents, 
but  in  sickness,  death  and  disaster  the  faithful  slave  was  often 
the  actual  legatee  of  the  cares  and  responsibilities  of  the  estate 
and  the  virtual  guardian  of  his  owner's  property  and  children. 
He  was  playmate,  pedagogue,  brother,  exemplar,  friend  and 
companion  of  the  white  from  the  cradle  to  the  grave.  His 
family  pride  far  surpassed  that  of  his  owners.  It  was  he 
that  set  apart  and  scorned  the  poor  whites  as  "po'  white 
trash,"  who  were  a  lower  order  of  society  in  his  opinion,  fit  to 
associate  only  with  other  social  pariahs,  and  not  with  "  quality 
folks"  like  himself  and  his  master.  It  was  he,  too,  that 
detested  the  "  free  negro,"  as  neither  a  member  of  the  family 
nor  of  industrial  society,  but  an  improvident  and  grumbling 
idler,  living  by  theft  or  charity.  As  the  hoary-headed 
patriarch  who  had  seen  several  generations  of  the  family  born 
and  buried  he  was  the  embodiment  of  wisdom  and  tyranny. 
His  sway  was  despotic  over  all  his  juniors,  young  and  old, 
white  and  black.  He  was  the  relative  of  the^amily,  titled  by 
merit  not  by  grace,  "  Uncle "  and  "  Mammy."  He  was 
hugged  and  kissed  by  the  children,  honored  and  respected  by 

99  Richmond  Enquirer,  August  30,  1831  ;  Examiner,  September  19  and  30, 
1900;  Whig,  September  26,  August  25,  29,  1831;  Norfolk  Herald,  August, 
1831;  Madison  Pamphlets,  Vol.  14,  110-133;  Minor,  Institutes,  I.,  185; 
Randolph,  Reports,  V.,  586 ;  Olmstead,  Slave  States,  154. 


Development  of  Slavery.  101 

their  elders.  His  opinion  was  consulted  and  generally  fol 
lowed  in  his  own  domain.  He  had  the  freedom  of  the  home 
and  of  the  plantation.  He  was  an  indispensable  factor  at 
grand  social  functions.  His  own  anniversaries  were  celebrated,! 
and  his  death  was  mourned  as  a  personal  and  not  as  a  prop 
erty  loss.100 

Such  were  a  few  among  the  noblest  fruits  of  domestic 
slavery.  But  there  were  both  light  and  shade.  There  was  no 
appropriate  reward  of  merit  which  the  tried  and  trusted  slave 
might  not  aspire  to  and  actually  receive,  but  the  slothful,  the 
inexperienced,  the  disorderly  and  corrupt  were  dealt  with  to 
the  full  extent  of  the  law.  The  reward  of  virtue  was  of 
grace,  sanctioned  and  commanded  by  custom  and  to  a  limited 
extent  by  law.  The  reward  of  vice  was  a  certainty.  It  met 
its  penalty  in  law,  and,  in  cases,  more  grievous  penalty  in 
custom.  The  choice  lay  not  with  the  inferior,  but  with  the 
superior.  It  was  partly  this  that  led  Jefferson  and  Tucker, 
looking  forward  from  the  institution  they  knew  in  the  eigh 
teenth  century,  to  predict 101  the  debauchery  of  public  and 
private  morals,  the  prostitution  of  youth,  and  the  bestializa- 
tion  of  both  master  and  slave.  To  Jefferson,  too,  it  supported 
an  unrepublican  form  of  government,  perpetuating  and  enhanc 
ing  a  caste  system  that  was  inconsistent  with  a  realization  of 
the  true  ideal  of  democratic  equality  upon  which  the  new 
state  and  nation  should  be  constituted.  But  to  Dabney,  Dew, 
and  the  later  generations  of  apologists,  looking  backward 
upon  actual  rather  than  possible  effects,  both  in  politics  and 
society,  it  produced  a  chivalrous,  honorable,  princely  and 
hospitable  aristocracy  best  fitted  to  rule  a  state  and  nation  ; 
while  it  conquered,  civilized  and  christianized  a  savage.102 

100  Dabney,  Defense  of  Virginia,  319,  321 ;  Fitzhugh,  Cannibals  All,  296,  301, 
302 ;  Fitzhugh,  Sociology,  245-248,  279 ;  Olmstead,  Slave  States,  46. 

101  Letters  from  Virginia,  73-103;  Jefferson,  Notes;  Tucker,  Blackstone; 
Appendix. 

102  Fitzhugh,  Sociology,  84,  et  seq.;  Dabney,  215,  et  teg.;  Smith,  Philosophy 
and  Practice  of  Slavery,  176-192,  228-257. 


102  History  of  Slavery  in  Virginia. 

To  the  one  the  good  effects  were  an  accident,  to  the  other  the 
evil.  Both  were  partly  right  and  partly  wrong.  Humanity 
and  virtue  were  as  characteristic  of  the  administration  of 
masters  as  cruelty  and  recklessness  were  of  the  far-away  over 
seer  or  domestic  slave-trader.  But  with  the  institution  as  a 
whole,  bad  treatment  was  the  exception  rather  than  the  rule. 
The  barbarity  of  chaining  together,  to  prevent  escape,  mem 
bers  of  a  band  of  melancholy  captives  bound  to  the  lands  of 
the  Ohio  or  the  Mississippi,  was  more  apparent  than  real. 
But  the  separation  of  husband  and  wife,  parent  and  child, 
never  in  life  to  meet  or  hear  of  the  other  again,  as  was  not  an 
infrequent  result  in  the  dispersion  of  the  estates  of  descedents 
and  bankrupts,  though  sanctioned  by  law,  was  from  a  white 
man's  point  of  view  a  curse  little  short  of  a  crime.  So,  also, 
the  lash  of  the  pitiless  overseer  or  slave-driver,  the  passion  of 
the  unscrupulous  owner  or  superior  might  inflict  pain  and 
indignity  without  any  adequate  check  in  law  or  custom  where 
the  good  will  of  the  patron  was  lacking  to  his  defenseless 
dependent. 

The  maintenance  of  the  slave  in  contrast  with  that  of  the 
servant  was  an  obligation  left  almost  wholly  to  the  regulation 
of  custom.  Motives  of  humanity  and  interest  were  considered 
sufficient  impulses  to  control  the  master's  action  here  without 
the  intervention  of  legislation,103  and  the  scarcity  of  com 
plaints  as  compared  with  those  of  servants  shows  that  the 
assumption  was  fully  justified.  This  duty  included  food, 
clothing,  housing  and  medical  atttention.  Food  was  simple, 
nourishing  and  abundant.  It  consisted  chiefly  of  fat  and  salt 
meat,  field  peas,  beans,  pumpkins,  melons  and  common  vege 
tables,  corn  bread  in  its  various  forms  of  the  "  pone,"  "  hoe- 
cake,"  "ash-cake,"  "dodgers,"  and  "scratch-backs,"  and  a 
kind  of  molasses  called  "  black-strap,"  "  pot-licker,"  and 
sometimes  "  possum "  and  persimmon-beer ;  apple-butter, 

103  Olmstead,  Slave  States,  37,  44,  110-112;  Dabney,  Defense  of  Virginia, 
273,  274;  Virginia  Code,  1849,  Cap.  10;  Hundley,  Social  Relations,  Metseq. 


Development  of  Slavery.  103 

and  often  cider  or  milk  were  common  in  the  back  country. 
A  kind  of  food  suited  to  their  taste  and  that  would  make  able- 
bodied  workmen  was  sought,  and  it  was  practically  the  same 
as  that  at  present  in  general  use  among  negro  and  white 
laborers  in  the  various  southern  States.  Clothing  was  plain 
and  coarse,  home-made  by  the  mistress,  the  housekeeper,  the 
domestics  and  cobblers  on  the  plantation,  or  imported  from 
England  and  the  North.  Two  all-around  outfits  were  given 
to  each  slave  during  the  year  at  times  best  suited  to  his  com 
fort  and  pleasure.  The  tax  upon  the  energies  of  the  female 
members  of  the  family  among  the  middle-class  planters,  who 
spent  their  evenings  and  the  long  winter  days  in  providing  the 
clothing,  was  a  serious  obstruction  to  the  pleasure  and  mental 
improvement  they  might  otherwise  have  enjoyed.104  It  has 
been  said  with  much  truth  that  the  master  and  mistress  were 
the  greatest  slaves  on  the  plantation.  The  negro  cabins  were 
comfortable  one  or  two-room  houses  for  separate  families, 
built  of  logs,  the  cracks  between  them  being  stopped  with 
wood  and  plaster.  They  were  the  "  log  and  daubed  "  houses 
still  common  and  were  much  superior  to  the  frontiersman's 
cabin.  But  often,  also,  they  were  built  of  substantial  brick 
with  a  second  story,  inner  fittings  and  windows  of  glass,  far 
more  commodious  and  comfortable  than  the  average  laboring 
free  man  of  the  South,  white  or  black,  is  able  to  erect  for  him 
self.  Sometimes,  especially  on  the  smaller  plantations,  they 
were  scattered  on  either  side  in  the  rear  of  but  near  the  manor 
house,  and  might  be  connected  with  it  or  with  the  kitchens  by 
covered  ways.  More  often  on  the  large  estates  such  provision 
was  made  only  for  the  domestics,  while  cabins  of  the  field 
workers  were  grouped  in  some  shady  grove  at  a  greater  distance 
from  the  house  and  were  known  as  "  quarters." 105  These 
might  be  in  charge  of  a  negro  or  white  overseer,  who  was 

104  Dabney,  Virginia,  276 ;  Hundley,  Social  Relations  in  our  Southern  States, 
84-90. 

106  Olmstead,  Slave  Stales,  27,  28,  44,  110,  111,  112. 


104  History  of  Slavery  in  Virginia. 

responsible  for  peace  and  order,  but  any  damage  done  by  the 
slaves  where  there  was  no  white  overseer  was  assessed  upon  the 
master.106  When  masters  owned  a  number  of  plantations  or 
farms  in  different  parts  of  the  State,  all  except  the  domain  were 
usually  under  the  control  of  overseers  who  lived  in  quarters 
with  the  "  gang  "  of  laborers,  servants  and  slaves. 

In  absenteeism  the  personal  bond  between  master  and  slave 
was  undoubtedly  weakened  and  the  economic  bond  of  identical 
interest  between  capital  and  labor,  though  it  might  be  strong, 
was  but  a  poor  substitute  for  mutual  affection.  Much 
depended  upon  the  personality  of  an  overseer,  and  he  was  not 
necessarily  moved  by  the  same  impulses  as  the  master.  He 
was  often  from  the  lowest  social  order  in  the  commuuity,  com 
mended  chiefly  by  his  business  capacity,  and  separated  by 
almost  as  wide  a  gulf  from  the  rulers  as  the  slave  he  directed, 
and  on  account  of  this  ostracism  inclined  to  be  a  greater  tyrant 
toward  those  under  him  than  he  would  otherwise  have  beenf 
He  was  often  an  ex-servant  or  ex-slave,  and  not  infrequently 
was  himself  a  slave.107  As  individuals,  overseers  often  deserved 
better  than  to  be  included  in  the  general  opprobrium  that  was 
inseparably  attached  to  their  class,  but  they  were  not  on  the 
whole  fitted  to  exercise  justly  and  humanely  the  great  powers 
of  personal  dominion  committed  to  them  by  masters  or 
assumed  in  their  absence,  without  some  ulterior  check  such  as 
direct  accountability  to  the  master  himself.  Instances  of  viola 
tion  of  white  female  servants  by  negro  overseers  in  the  early 
days,  and  of  negro  females  by  white  overseers  were  not 
unknown.108  The  abuse  of  power  by  an  overseer  was  restricted 
wherever  he  came  under  the  master's  personal  supervision, 
which  was  the  case  in  the  majority  of  instances,  as  the  absentee 
landowners  and  very  large  slave-holders  were  a  comparatively 
small  class.  More  than  55  per  cent,  of  Virginia  slaves  of  1860 


106  Hening,  III.,  103,460. 

107  Chastellux,  Travels,  II.,  20 ;  Olmstead,  Slave  Stales,  45. 
108Kobinson,  MSS.,  256. 


Development  of  Slavery.  105 

were  held  by  owners  of  1  to  20,  and  half  of  these  by  owners  of 
1  to  9.  A  poll  of  Spottsylvania  County,  Virginia,  in  1783 
showed  505  owners  as  possessing  only  4,581  slaves,  the  largest 
owner  having  but  159  slaves,  nearly  50  per  cent,  having  be 
tween  one  and  five  slaves,  and  only  nine  persons  having  over 
forty.  Twenty  slaves  were  considered  the  minimum  under  an 
overseer  for  a  successful  tobacco  plantation,  so  the  number  of 
plantations  in  the  hands  of  single  owners  was  necessarily  re 
stricted,  as  each  required  the  use  of  some  1,000  acres  of  land. 
The  very  small  planters  had  a  minimum  of  at  least  200  acres, 
requiring  but  four  or  five  slaves,  and  even  the  holders  of  5,000 
or  6,000  acres  had  often  only  sufficient  slaves  to  clear  and 
cultivate  but  a  small  proportion  of  their  holdings.  The  popu 
lation  of  the  hilly  and  mountain  regions  was  small  slave- 
holding,  as  it  was  mostly  grain  farming  and  grazing  in  occu 
pation  as  distinguished  from  planting ;  i.  e.,  following  the 
old  custom  of  staple-crop  raising.109  The  largest  plantations 
lay  in  the  low  country,  mostly  along  the  chief  water  courses, 
the  James,  the  Rappahanock,  the  York,  the  Potomac  and  the 
inlets  of  Chesapeake  Bay,  just  as  farther  south  they  were 
along  the  Cape  Fear,  Santee,  Savannah,  Chattahoochee,  Mobile, 
Mississippi  rivers,  and  the  Mobile  and  other  bays.  Even 
there  the  manor-houses  and  cultivated  lands  were  quite  a  dis 
tance  from  each  other,  and  the  domain  was  in  itself  a  petty 
lordship  under  the  rule  and  oversight  of  the  master,  so  the 
personal  separation  of  master  and  slave  in  the  prosperous  days 
of  slavery  in  Virginia  was  not  general  but  exceptional. 

As  the  institution  became  less  profitable  economically  or  the 
master  acquired  frontier  lands,  congestion  was  relieved  by 
removing  the  increase  of  slaves  to  their  other  lands,  or  by  sell 
ing  slaves  to  the  domestic  slave  trader  for  the  southern  mar 
ket,  or  by  hiring  and  leasing  them  to  corporations  and  indi- 


109  Virginia  Magazine  of  History  and  Biography,  January,  1897,  298 ; 
American  Husbandman,  L,  231 ;  Chastellux,  Travels,  190,  191 ;  Thatham, 
Agriculture  of  the  United  States,  46,  n. 


106  History  of  Slavery  in  Virginia. 

viduals  for  a  small  net  profit,  either  with  or  without  lands  and 
houses.  This  transfer  from  the  direct  control  of  the  master 
might  subject  the  dependent  to  harsh  or  barbarous  treatment 
at  the  hands  of  persons  who  regarded  him  only  with  respect 
to  his  economic  value.  Masters  were  generally  careful,  both 
from  interest  and  affection,  to  select  good  lessees  where  any 
choice  existed.  The  tendency  to  develop  harsh  treatment 
under  the  lease  system  was  restricted  by  penal  and  civil 
penalties,  and  in  Jefferson's  opinion  slaves  were  more  certain 
of  better  usage  than  when  sold.  The  master's  range  of  choice 
between  humane  and  possibly  cruel  traders  was  more  limited. 
Some  traders  were  well  known  and  respected  all  over  the 
State,  others  locally,  and  many  personally  conducted  their 
gangs  down  the  Ohio  and  Mississippi  to  the  cotton  South. 
But  once  in  the  general  market  there  was  no  security  for  the 
good  usage  of  the  slave  until  lodged  with  a  humane  master, 
except  in  the  financial  interest  of  the  trader,  which  impelled 
him  to  keep  his  goods  in  the  best  condition  for  ready  and 
profitable  sale.  It  was  the  slave  increase,  however,  that 
figured  in  this  domestic  slave  trade,  though  not  all  of  it.  In 
1840,  regardless  of  the  fact  that  Virginia  was  sending  6,000 
surplus  slaves  annually  to  the  Southwest,  her  slave  population 
still  increased  by  5  per  cent.110 

The  master's  personal  guardianship  could  not  always  follow 
his  hired  and  leased  slaves  when  they  were  sent  to  parts 
of  the  country  far  away  from  his  domain,  but  if  very  harshly 
treated  the  slave  had  a  legal  remedy.  It  was  customary  to 
lease  slaves  not  only  with  old  plantations  fully  stocked  and  to 
persons  beginning  new  ones,  but  for  works  of  improvement  in 
developing  sections,  such  as  the  mines  of  the  back  country. 
These  slaves  usually  came  in  large  bodies  from  the  eastern 
districts  of  the  State,  yet  almost  invariably,  though  in  gangs 
which  offered  greater  occasion  for  rigorous  treatment,  they 


110  Sparks,  Washington,  1780,  263,  et  »eq. ;  Smyth,  Travels,  L,  15 ;  Jeffer 
son,  Works,  IV.,  342,  343,  416,  418. 


Development  of  Slavery.  107 

were  accorded  great  liberty  and  many  privileges.  They  were 
allowed  to  visit  their  families  and  friends  for  Christmas  on  the 
old  plantations,  and  might  by  harder  work  and  odd  jobs  add 
considerable  earnings  of  their  own  to  what  they  gained  for 
their  master,  and  their  full  right  to  this  wage  of  labor  was  not 
disputed.  They  often  stipulated  with  their  masters  for  a 
certain  return  and  had  the  full  enjoyment  of  all  they  might 
earn  above  this.  In  this  way  it  was  not  unusual  for  them  to 
save  enough  to  purchase  their  freedom.111 

The  ordinary  work  of  the  male  slave  was  praedial  and  that 
of  the  woman  domestic,  but  it  was  not  uncommon  for  women 
and  children  to  work  by  the  side  of  the  men  at  the  lighter 
tasks  of  field  labor.  In  this  their  treatment  differed  from  that 
of  white  female  servants  who  were  not  ordinarily  so  employed. 
But  the  wives  and  mothers  were  at  greater  liberty  than  they 
are  today,  and  the  main  duty  of  those  not  specifically  house 
hold  slaves  was  to  take  care  of  the  quarters  and  the  children 
while  the  hands  were  in  the  field.  The  life  in  the  quarters 
was  one  of  its  own.  There  was  much  hospitality  and  socia 
bility,  much  dancing,  laughing,  singing  and  banjo-playing  when 
the  day's  work  was  done.  This  was  the  home  of  the  plantation 
melody  and  clog  dance.  There  was  little  that  was  morose 
or  gloomy  about  the  slave,  either  at  work  or  rest.  If  his 
condition  was  deplorable  it  was  rare  that  he  recognized  it  to 
the  extent  of  allowing  it  to  affect  his  spirits.  He  was,  under 
reasonable  conditions,  almost  invariably  cheerful,  polite,  and 
respectful  to  his  superiors  and  strangers,  without  sycophancy 
and  without  fawning.  He  was  well-bred  like  his  master,  and 
his  manners  were  rather  those  of  a  person  accustomed  to 
liberty  by  the  reign  of  law  and  order  than  to  servile  oppres 
sion.  He  often  showed  a  dignity  and  self-respect  that  brought 
into  striking  contrast  the  pert  inquisitiveness  and  false  pride 
of  the  lowest  stratum  of  the  laboring  whites  in  the  North  and 
the  South,  which  proved  so  annoying  and  was  so  much  com- 

111  Munford,  Reports,  III.,  350;  Olmstead,  Slave  States,  46,  47. 


108  History  of  Slavery  in  Virginia. 

merited  upon  by  foreign  travelers.  The  field  hand  learned  to 
improve  his  manners  from  the  example  of  the  whites,  from 
the  church  and  from  those  slaves  above  him  who  came  in  more 
direct  contact  with  the  best  white  society.  Among  these  were 
the  trusted  body  servant  and  nurse,  the  coach-driver,  the 
butler,  the  purveyors,  and  the  black  aristocracy  of  skilled 
laborers — the  carpenters,  cobblers,  and  smiths — who  were 
indispensable  to  every  large  plantation.  Much  free  time  was 
given  them  from  their  work,112  often  Saturday  afternoon  and 
always  Sunday  and  the  holidays  of  Easter,  Whitsuntide  and 
Christmas.  The  system  of  task-labor  based  on  the  slave  of 
minimum  capacity  allowed  much  leisure  or  opportunity  to 
the  man  above  the  average,  often  as  much  as  one-fourth  of 
his  time.  This  he  might  employ  to  his  own  profit  or  pleasure 
within  legal  limits  in  travel,  trade,  and  assembly  or  in  acquir 
ing  property.  The  master's  consent  was  rarely  withheld  to 
such  free  action  of  his  slave  at  these  times  as  was  not  actually 
menacing  to  others  or  likely  to  result  in  his  own  hurt.  In 
sickness  he  had  the  same  medical  attention  that  came  to  the 
inmates  of  the  great  house,  and  often  the  skillful  nursing  and 
care  of  the  mistress  herself.113 

Custom  further  allowed  a  distinct  extension  of  the  slave's 
right  to  private  property.  The  use  of  small  plots  of  ground 
adjoining  their  cabins  was  almost  invariably  allowed  them. 
These  were  turned  into  gardens  of  flowers  and  truck,  which 
might  beautify  the  home  or  be  disposed  of  to  the  slave's  advan 
tage.  He  was  allowed  to  raise  swine  and  frequently  fowls, 
and  might  be  given  an  old  horse  or  mule  by  his  master  for 
the  cultivation  of  his  ground.  An  industrious  slave  might  in 
this  way  lay  aside  a  competence  or  even  enough  to  purchase 
his  freedom.  .Restrictions  of  the  law  had  little  effect  upon  the 
rights  of  user  enjoyed  by  the  slave  or  of  property  which  was 

112  Hening,  III.,  103,  460 ;  VI.,  295;  XL,  59;  Kandolph,  Reports,  VI., 
672. 

118  Olmstead,  Slave  States,  101,  102,  109. 


Development  of  Slavery.  109 

managed  as  peculium,  but  whose  undivided  profits  the  master 
allowed  to  go  to  his  slave.114 

The  right  to  instruction,  secular  and  religious,  was  based 
upon  custom,  but  also  enjoyed  a  legal  sanction.  Prior  to  1805 
it  had  been  customary  not  only  to  provide  instruction  for 
slaves  but  for  servants  and  free  negroes.  Church  wardens  and 
overseers  of  the  poor  upon  binding  out  a  bastard  or  a  pauper 
child,  black  or  white,  specifically  required  that  he  should  be 
taught  to  "read"  and  "write"  and  "calculate,"  as  well  as  to 
follow  some  profitable  form  of  labor.115  The  part  played  by 
free  negroes  in  insurrections  and  the  fear  occasioned  by  a  plot 
actually  discovered  at  the  time  caused  an  enactment  relieving 
authorities  from  the  necessity  of  making  such  provisions  for 
the  future.  And  even  the  act  of  1830-31  against  unlawful 
assemblies  put  no  check  upon  the  gratuitous  instruction  of 
slaves  nor  upon  the  private  instruction  of  free  blacks  by  other 
colored  persons.116 

The  education  of  the  negro  was  designed  to  prepare  him 
to  take  that  place  in  economic,  social,  and  political  organiza 
tion  for  which  he  seemed  fitted  under  the  slave  regime.  As 
a  labor  factor  he  found  a  place  in  general  without  compe 
tition  already  prepared  in  which  he  alone  was  master  and  had 
no  superior.  A  single  exception  may  be  made  in  the  field  of 
local  commerce  and  manufactures  to  which  he  was  admitted. 
Here  rather  than  in  praedial  labor  he  competed  to  the  disad 
vantage  of  free  labor.  The  navigation  of  his  master's  craft 
was  almost  wholly  in  his  hands,  and  discouraged  the  increase 
of  white  seamen  to  such  an  extent  that  it  was  regarded  a 
public  evil,  so  a  law  of  1784  restricted  the  employment  of 
slaves  in  river  and  bay  navigation  of  tide  water  to  one-third 
of  the  total  persons  so  employed.  In  participation  in  domestic 


114  Adams,  View  of  Slavery,  35,  49,  50. 

115  Statutes  at  Large,  III.,  124. 

116  Statutes  at  Large,  1804,  108;  1805,124;  1831,  108;  1847,  120;  Hurd, 
Law  of  Freedom  and  Bondage,  II.,  9. 


110  History  of  Slavery  in  Virginia. 

manufactures  he  was  not  restricted  legally  nor  to  any  extent 
by  custom,  when  capacity  was  shown,  but  his  presence  was  a 
serious  discouragement  to  the  growth  of  a  free  artisan  class.117 

Nor  was  the  capacity  of  the  minority  of  the  colored  race 
for  higher  education  less  vindicated  under  the  old  regime  than 
under  the  new.  Instances  of  extraordinary  intelligence  among 
slaves  and  free  negroes  were  common,  and  the  facilities  that 
some  of  these  enjoyed  for  education  would  even  now  be  con 
sidered  remarkable.  Several  examples  are  worthy  of  more 
than  passing  mention.  In  the  county  court  of  Rockbridge  in 
1802  the  freedom  and  character  of  a  black,  the  Rev.  John 
Chavis,  were  certified  to  and  established  beyond  doubt  by  the 
court,  which  declared  that  he  had  passed  "  through  a  regular 
course  of  academic  studies"  as  "a  student  at  Washington 
Academy,"  now  Washington  and  Lee  University.  In  the 
same  region  in  1820  a  neighborhood  school  patronized  by  the 
whites  consisted  of  thirty  children,  of  whom  ten  were 
negroes.118  Probably  the  most  interesting  case  in  the  entire 
South  is  that  of  an  African  preacher  of  Nottoway  county, 
popularly  known  as  "  Uncle  Jack,"  whose  services  to  white 
and  black  were  so  valuable  that  a  distinguished  minister  of 
the  Southern  Presbyterian  Church  felt  called  upon  to  memori 
alize  his  work  in  a  biography. 

Kidnapped  from  his  idolatrous  parents  in  Africa,  he  was 
brought  over  in  one  of  the  last  cargoes  of  slaves  admitted  to 
Virginia  and  sold  to  a  remote  and  obscure  planter  in  Nottoway 
county,  a  region  at  that  time  in  the  backwoods  and  destitute 
particularly  as  to  religious  life  and  instruction.  He  was  con 
verted  under  the  occasional  preaching  of  Rev.  Dr.  John  Blair 
Smith,  President  of  Hampden  Sidney  College,  and  of  Dr.  Wm. 
Hill  and  Dr.  Archibald  Alexander  of  Princeton,  then  young 
theologues,  and  by  hearing  the  Scriptures  read.  Taught  by 


11THening,  XL,  404. 

118 Dr.  Wm.  Henry  Kuffner,  Rockbridge  County  News;  cf.  Order  Book, 
County  Court,  VI.,  10,  and  Lexington  Gazette,  November  27,  1879. 


Development  of  Slavery.  Ill 

his  master's  children  to  read,  he  became  so  full  of  the  spirit 
and  knowledge  of  the  Bible  that  he  was  recognized  among 
the  whites  as  a  powerful  expounder  of  Christian  doctrine,  was 
licensed  to  preach  by  the  Baptist  church  and  preached  from 
plantation  to  plantation  within  a  radius  of  thirty  miles,  as  he 
was  invited  by  overseers  or  masters.  His  freedom  was  pur 
chased  by  a  subscription  of  whites  and  he  was  given  a  home 
and  a  small  tract  of  land  for  his  support.  He  organized  a 
large  and  orderly  negro  church,  and  exercised  such  a  wonder 
fully  controlling  influence  over  the  private  morals  of  his  flock 
that  masters,  instead  of  punishing  their  slaves,  often  referred 
them  to  the  discipline  of  their  pastor,  which  they  dreaded  far 
more. 

He  stopped  a  heresy  amongst  the  negro  Christians  of 
Southern  Virginia  by  defeating  in  open  argument  a  famous 
fanatical  negro  preacher  named  Campbell,  who  advocated 
noise  and  "  the  Spirit "  against  the  Bible,  winning  over 
Campbell's  adherents  in  a  body.  For  over  forty  years,  and 
until  he  was  nearly  a  hundred  years  of  age,  he  labored  success 
fully  in  public  and  private  amongst  whites  and  blacks,  volun 
tarily  giving  up  his  preaching  in  obedience  to  the  law  of  1832, 
the  result  of  "Old  Nat's  War."  Though  assured  that  he 
would  not  be  held  under  the  penalty  of  the  law,  he  refused  to 
preach  longer  and  expressed  his  full  approval  of  it,  saying 
with  humility,  "  It  is  altogether  wrong  for  such  as  have  not 
been  taught  themselves  to  undertake  to  teach  others.  As  to 
my  preaching,  I  have  long  thought  it  was  no  better  than  the 
ringing  of  an  old  cow-bell  and  ought  to  be  stopped."  He 
believed  in  restraint  as  necessary  for  negroes,  and  said  that  the 
African  Colonization  Society  would  only  succeed  by  applying 
these  principles  to  the  native  Africans  in  their  "  superstitious 
and  degraded  condition."  But  for  his  age  and  time  he  might 
have  anticipated  the  missionary  work  in  Africa  of  another 
noble  negro  preacher,  Rev.  Mr.  Shepherd,  also  a  native  of 
Virginia  and  a  joint  product  of  the  post  and  antebellum 
methods  of  education.  "  Coming  to  the  white  man's  country 


112  History  of  Slavery  in  Virginia. 

as  a  slave,"  said  "  Uncle  Jack,"  "  was  the  means  of  making 
me  free  in  Christ  Jesus,"  and  "  if  I  were  only  young  enough 
I  should  rejoice  to  go  back  and  preach  the  gospel  to  my  poor 
countrymen.  But  it  would  be  a  great  trial  to  live  where  there 
are  no  white  people." 

"  Old  Jack  "  understood  and  spoke  English  better  than  most 
negroes  of  the  old  days,  because  he  read  his  Bible  so  con 
stantly,  and  because  he  was  admitted  to  the  best  society  of  his 
county.  His  pronunciation,  style  and  choice  of  language  were 
all  good.  He  never  used  "  massa  "  and  "  missus  "  for  "  mas 
ter  "  and  "  mistress,"  nor  "  me "  for  "  I,"  contrary  to  the 
general  negro  dialect.  The  most  refined  and  aristocratic  peo 
ple  paid  tribute  to  him,  and  he  was  instrumental  in  the  con 
version  of  many  whites.  Says  his  biographer,  Rev.  Dr.  Wm. 
S.  White,  "  He  was  invited  into  their  houses,  sat  with  their 
families,  took  part  in  their  social  worship,  sometimes  leading 
the  prayer  at  the  family  altar.  Many  of  the  most  intelligent 
people  attended  upon  his  ministry  and  listened  to  his  sermons 
with  great  delight.  Indeed,  previous  to  the  year  1825  he  was 
considered  by  the  best  judges,  to  be  the  best  preacher  in  that 
county.  His  opinions  were  respected,  his  advice  followed,  and 
yet  he  never  betrayed  the  least  symptoms  of  arrogance  or  self- 
conceit.  His  dwelling  was  a  rude  log  cabin,  his  apparel  of 
the  plainest  and  coarsest  materials."  This  was  because  he 
wished  to  be  fully  identified  with  his  class.  He  refused  gifts 
of  better  clothes,  saying,  "  These  clothes  are  a  great  deal 
better  than  are  generally  worn  by  people  of  my  color,  and 
besides  if  I  wear  them  I  find  I  shall  be  obliged  to  think  about 
them  even  at  meeting!1 119 

Such  indeed  was  the  rare  product  of  the  old  civilization  as 
it  is  of  the  new.  "  Jack  "  was  one  of  a  thousand,  yet  he  is  an 
illustration  of  the  fact  that  virtue  had  its  own  reward  in  the 
slave  system,  as  well  as  in  the  free,  and  that  there  was  no  dis- 

119  White,  The  African  Preacher,  5-139. 


Development  of  Slavery.  113 

position  to  keep  down   deserving  intelligence  and   morality 
whenever  disclosed. 

But  the  mass  of  negroes  were  not  neglected,  either  socially 
or  morally,  as  the  ante-bellum  type — now  all  too  rapidly 
fading  away — is  an  eloquent  witness.  The  plantation  of 
every  pious  man  or  woman  had  its  Sunday  school,  taught  by 
the  devoted  women  of  the  household  or  by  itinerant  preachers 
who  expounded  the  Bible  and  Christian  doctrines  to  the  circle 
of  slaves,  young  and  old,  gathered  around  them.  The  domes 
tics  of  the  house  and  body  servants  were  always  summoned  to 
partake  in  the  sacred  family  worship  and  had  their  place 
around  the  hearthstone,  in  that  inner,  exclusive  religious  circle 
sanctified  by  holy  memories  and  the  historic  custom  of  the 
race.120  In  the  towns  and  cities  more  specific  means  of  religious 
instruction  were  provided.  Separate  Sunday  schools  for 
negroes,  conducted  by  some  of  the  foremost  citizens  of  the 
locality  or  of  the  State,  were  organized  with  hundreds  of 
attendants.  Such  an  one  was  that  led  by  General  Stonewall 
Jackson  in  the  small  town  of  Lexington  while  he  was  a  pro 
fessor  in  the  Virginia  Military  Institute,  and  continued  later 
by  another  of  its  professors,  Colonel  Preston.  Just  after  the 
Confederate  victory  at  Manassas,  when  his  fellow  townsmen 
were  waiting  eagerly  for  news,  Jackson  wrote  to  Dr.  White, 

"  My  dear  Pastor, — In  my  tent  last  night,  after  a  fatiguing 
day's  service,  I  remembered  that  I  had  failed  to  send  you  my 
contribution  for  our  colored  Sunday  school.  Enclosed  you 
will  find  my  check  for  that  object,  which  please  acknowledge 
at  your  earliest  convenience  and  oblige  yours  faithfully, 

T.  J.  JACKSON." 

Many  of  the  negroes,  free  and  slave,  were  members  of  the 
same  churches  as  the  whites.  A  place  was  always  set  apart 


120  White,  The  African  Preacher,  10, 14;  Adams,  Southside  View  of  Slavery, 
53,  56-58. 

8 


114  History  of  Slavery  in  Virginia. 

for  them,  either  in  the  body  or  in  the  galleries  of  the  church, 
which  was  peculiarly  their  own.  Both  by  law  and  custom,  at 
different  times,  they  were  required  to  attend  service  with  the 
whites.  The  idea  of  "  mixed  "  churches  never  troubled  the 
slave-holder.  The  color  line  was  political  and  social,  not 
religious.  In  1841,  500,000  southern  slaves,  one-fifth  of 
their  total  number,  were  said  to  be  church  members,  and 
2,000,000  were  regular  attendants.  Separate  churches  were 
sometimes  built  for  them  in  the  cities  by  the  subscriptions  of 
their  masters,  but  the  mass  of  negroes  remained  attached  to 
the  churches  of  the  whites  and  departed  from  them  slowly  and 
reluctantly  after  the  civil  war.121 

The  strength  of  the  personal  attachment  of  the  dependent 
for  his  superior  and  the  supreme  lesson  of  his  teaching  were 
never  more  strongly  shown  than  in  the  trials  of  the  war  and 
reconstruction  periods.  When  almost  the  total  capable  white 
population  was  absent  in  arms,  when  bands  of  marauders  and 
camp  sutlers  followed  the  wake  of  victorious  or  retreating 
armies,  devastating  or  appropriating  what  the  soldiers  had  left, 
when  their  fears  and  avarice  were  appealed  to  from  all  sides 
by  free  negroes  and  disreputable  whites,  they  were  faithful 
almost  to  a  unit,  except  the  younger  element,  in  devotion  to 
their  masters'  implicit  trust  to  their  care  of  his  family  and 
property,  protecting  it  even  with  their  lives.  They  went  into 
the  war  with  "  young  master,"  they  brought  his  body  home, 
they  helped  the  women  to  bury  him,  or  they  staid  upon  the 
lonely  and  devastated  plantation,  coaxing  from  its  sterile  soil, 
without  the  help  of  horse  or  plough,  enough  to  keep  together 
body  and  soul  in  the  mistress,  her  children,  and  dependents.122 
That  this  was  not  due  merely  to  physical  and  mental  inertia 
or  the  habit  of  obedience  from  long  restraint,  the  reluctance 


121  Campbell,  Race  Problem  in  the  South,  13 ;  cf.  Mrs.  Jackson's  Stonewall 
Jackson,  181-182;  Dabney,  Defense  of  Virginia,  215,  217,  219. 

122  Campbell,  Race  Problem,  7;  Burial  of  Latane";  Acts,  Called  Session, 
1862,  6 ;  Acts,  1863,  38,  42 ;  Dabney,  Virginia,  293,  344. 


Development  of  Slavery.  115 

with  which  many  severed  the  tie  and  the  frequent  refusal  to 
leave  their  old  masters,  no  longer  able  to  support  or  pay  them, 
is  sufficient  proof.  With  many  no  change  of  relation  was 
made,  and  the  only  evidence  that  slavery  had  ceased  to  exist 
was  the  regular  wage  which  was  paid  where  their  former 
owner  was  able.  The  inefficient,  the  old,  the  sick  still  enjoyed 
the  protection  and  support  of  the  master  who  could  give  it, 
and  when  he  could  not,  his  sympathy  and  good  offices  in 
securing  aid  from  the  State.  In  truth,  in  custom  the  slave 
was  not  a  slave,  he  was  a  servant.  The  term  slave  was 
unknown  to  common  usage — it  was  a  term  of  the  law,  and  even 
there  the  relation  was  known  as  that  of  master  and  servant. 
He  was  often  a  retainer,  a  member  of  the  family,  a  friend, 
though  not  equal  to  his  chief.  So  in  the  manners  of  the 
people  the  tendency  to  continue  or  return  to  that  earlier  con 
ception  of  dependent  labor,  servitude,  from  which  legal  slavery 
was  evolved,  was  never  wholly  obliterated. 


CHAPTER  III. 
MANUMISSION,  EMANCIPATION,  AND  THE  FREE  MAN. 

In  the  destruction  as  well  as  in  the  creation  of  the  legal 
status  of  dependents  in  various  forms  of  servitude  much 
similarity  exists.  The  three  Roman  Law  modes  of  creating 
a  slave — birth,  capture,  and  condemnation  on  a  criminal 
charge — were  acknowledged  in  English  and  American  law, 
but  its  three-fold  mode  of  destroying  this  status  by  manumis 
sion  and  creating  one  of  freedom  was  not  so  fully  recognized. 
Emancipation  with  the  Romans  was  the  freeing  of  the  child 
from  the  patria  potestas.  The  process  in  the  case  of  a  daughter 
or  a  grandchild  involved  in  the  early  Empire  a  single  manci- 
patio,  or  solemn  sale,  and  remaucipatio,  or  re-sale  by  the  ven 
dee,  and  the  manumissio  of  the  father,  which  was  the  act  of 
emancipation ;  but  in  the  case  of  a  son  the  procedure  was 
thrice  gone  through  with  before  the  manumission  of  the  father 
completed  the  elaborate  ceremony.  Manumission  required 
some  solemn  process  of  law  or  official  act  not  only  to  protect 
the  freed  man  in  his  new  rights  and  as  a  check  upon  the  mas 
ter,  but  to  acknowledge  the  supremacy  of  the  state  over  such 
private  acts  of  the  individual  as  might  affect  the  public  weal. 
The  master  consequently  admitted  the  freedom  or  declared  his 
intent  and  desire  to  free  his  slave  in  a  court  of  equity  before 
the  praetor,  who  in  the  name  of  the  state  assented  to  the 
manumission,  or  by  will  or  trust  demanded  his  enfranchise 
ment  according  to  the  rules  of  law,  or  secured  the  entry  of  his 
name  upon  the  register  of  citizens.  Not  until  very  late  days 
was  the  formality  of  law  and  ceremony  largely  dispensed  with. 
The  power  of  the  master  in  this  respect,  then,  was  subject  to 
decided  restriction  and  limitation.  So  also  in  English  villain- 
116 


Manumission,  Emancipation,  and  the  Free  Man.      117 

age,  a  closer  analogue  to  American  slavery,  the  lord  in  the 
early  days  could  only  free  his  man  as  respected  himself,  and 
third  parties  only  as  respected  others,  not  the  master ;  and  en 
franchisement  required  a  formal  process  and  legal  sanction. 
Directly,  it  was  made  by  a  grant,  a  formal  charter  from  the 
lord  in  consideration  of  the  purchase  of  his  freedom  by 
another,  and  in  later  days  even  by  the  man  himself,  or  at  the 
pleasure  of  the  lord  without  valuable  consideration.  But  the 
lord  could  neither  free  nor  transfer  him  by  will.  The  indi 
rect  modes  were  by  the  suit  of  the  villain  based  upon  a  manu 
mission  implied  in  a  feoffment,  convention  or  grant  whose 
terms  might  be  construed  to  acknowledge  his  freedom,  or  by 
non-user  of  his  services  for  a  year  and  a  day,  during  which 
time  he  was  a  resident  of  privileged  soil  and  treated  as  a  free 
man.  These  modes,  suit  and  prescriptive  right  to  freedom, 
were  analogous  to  those  of  the  creation  of  a  villain,  by  pre 
scription,  long  usus  as  a  villain,  and  by  acknowledgment  of 
the  status  in  a  court  of  record,  which  acted  as  well  as  birth  to 
establish  unfree  status.1  These  modes  also,  were  finally  ap 
plied  to  establish  title  to  slaves  in  Virginia. 

It  is  but  natural,  then,  that,  as  custom  and  law  but  grad 
ually  sanctioned  and  defined  the  status  of  the  unfree,  so  also 
the  transition  to  a  status  of  full  freedom  should  be  a  develop 
ment  determined  by  changing  conditions  of  economic  and 
social  demand,  marked  by  a  slow  revolution  of  popular  senti 
ment.  As  the  definition  of  the  full  status  of  the  slave  covered 
a  period  of  over  two  centuries  in  American  history,  so  the  rise 
of  his  descendant  to  the  full  rights  and  privileges  of  a  state  of 
freedom  was  and  will  be  a  continuing  evolution  conditioned 
chiefly  upon  his  desert  and  ability  to  maintain  that  status  or 
upon  the  power  and  assent  of  others  to  sustain  him  in  it. 
Neither  manumission  nor  emancipation  could  of  itself  vindi 
cate  perfect  equality  before  the  written  and  unwritten  law  of 

^inogradoff,  Villainage,  70,86,  88,  184,  214,  275;  Sohm,  Roman  Law, 
-25,  110,  393,  394. 


118  History  of  Slavery  in  Virginia. 

'  the  land  or  of  society.  The  ultimate  tribunal  in  which  this 
progression  was  and  is  to  receive  its  sanction  is,  by  the  nature 
of  society,  self  constituted  in  that  power  upon  which  rests  the 
constitutions  of  states  themselves — Dominant  Public  Opinion 
— the  most  equitable  social  judge  of  the  rights  of  man. 

If  left  to  itself,  emancipation — referring  to  a  general  move 
ment,  the  elevation  of  the  mass — rather  than  manumission, 
the  freeing  of  individuals,  has  been  in  many  historic  cases  and 
for  best  social  and  economic  results  should  be  gradual.  Yet 
external  force  as  a  supposed  or  actual  necessity  to  complete 
such  a  social  revolution  has  often  been  applied.  In  many  of 
the  American  colonies  and  in  Austria  and  Prussia,  economic 
forces  were  strong  enough  in  themselves  to  effect  the  transition. 
But  in  England,  France,  and  part  of  Germany  peasant  wars, 
partly  social  partly  political,  intervened  to  complete  the 
destruction  of  villainage  and  serfdom ;  and  in  America  the 
war  of  Secession  left  the  enfranchised  slave  as  but  one  of  its 
many  results.  But  both  in  England  and  in  regions  of  the 
South  economic  causes  might  have  been  sufficient  to  have 
secured  the  same  result,  if  left  to  long-continued  and  peaceful 
action  as  at  the  North.2 

The  first  step  toward  general  emancipation,  in  both  England 
and  Virginia,  was  in  the  growth  of  customary  commutation 
for  service  in  rents ;  payments  in  kind  or  in  money.  Through 
this  practice  gradually  arose  upper  or  privileged  classes,  such 
as  the  "  molmen  "  and  "  gavelmen  "  of  England,  the  house 
and  body  servants  of  Virginia,  the  efficient  artisans  and  the 
aged,  who  tended  to  become  peasant  proprietors,  or  whose 
service  was  viewed  as  based  upon  contract  and  custom,  rather 
than  upon  Jaw.  This  emancipation  was  de  facto  rather  than 
formal,  but  it  was  widespread,  and  influenced  the  elevation  of 
the  whole  dependent  class  toward  the  station  of  freemen,  by 
transferring  a  lower  to  a  higher  status  through  forms  of  service 
and  reverting,  in  America,  from  slavery  to  servitude.  Custom 

2  Tucker,  Progress  of  the  United  States,  108-118. 


Manumission,  Emancipation,  and  the  Free  Man.      119 

found  its  ready  response  in  legislation.  Such  a  privileged 
dependent  brought  into  the  courts  was  almost  certain  to  obtain 
his  freedom  either  at  once  or  after  short  duration,  thus  giving 
a  further  impetus  to  the  public  opinion  that  called  for  enfran 
chisement.  Another  form  of  commutation  was  that  of  service 
to  the  State  in  the  master's  stead.  Here  free  services  were  by 
consent  taken  as  presumptive  evidence  of  free  condition,  and 
liberty  consequently  followed.3 

Manumission  began  within  a  few  years  of  enslavement. 
The  effects  of  the  act  of  baptism  to  free  the  slave,  admitted  by 
some,  was  legally  denied  in  1667,  but  a.  Taw  in  1668,  settling 
the  question  of  the  liability  of  the  enfranchised  to  taxation,  is 
witness  to  a  class  of  free  negro  women  at  least  at  this  early 
date.  These,  while  allowed  liberty,  had  not  all  of  its  privi 
leges,  as  unlike  white  women  they  were  still  accounted 
tithables,  though  in  cases  of  old  age  and  merit  they  were 
exempted  from  taxation.  So  also  in  1670  the  manumission  of 
male  negroes  and  Indians  was  recognized,  but  they  were  not 
allowed  like  whites  to  hold  Christian  white  servants,  though 
they  might  have  colored.  The  danger  of  the  free  negro  and 
Indian  element  was  very  early  recognized,  and  resulted,  in 
1691,  in  a  restriction  of  the  right  of  manumission.  For  fear 
that  freedraen  would  harbor  runaways,  receive  stolen  goods,  or 
from  their  age  become  a  public  charge  it  was  determined  by 
the  Assembly,  then  passing  an  act  to  suppress  "outlying 
slaves,"  to  make  transportation  of  ex-slaves  without  the  colony 
a  condition  of  the  master's  manumission.  An  exception  to 
this  was  made  in  the  case  of  especially  meritorious  public  ser 
vices,  such  as  revealing  conspiracies  of  negroes  or  law  breakers, 
where  a  special  act  of  assembly  might  intervene  to  give  the 
slave  all  the  rights  of  a  free  negro  and  choice  of  residence. 
This  was  done  in  the  cases  of  Robert  Ruffin's  slave,  Will,  in 
1710,  at  a  cost  of  £40  to  the  State,  and  of  Hinchia  Marbury's 
slave,  Kitt,  at  a  cost  of  £1000  in  1779.  The  master's  power 

3  Herring,  XI.,  308. 


120  History  of  Slavery  in  Virginia. 

to  manumit  was  not  further  restricted  by  law  until  1723,  when 
in  consequence  of  insurrections  freedom  was  limited  upon  such 
meritorious  service  as  was  "  adjudged  and  allowed  by  the 
governor  and  council "  and  the  "  license  "  of  the  master  ob 
tained  therefor.4  Manumission  by  special  act  of  assembly 
upon  the  master's  application,  sometimes  naming  a  number  of 
slaves  at  one  time,  however,  continued  as  a  regular  mode  until 
the  growth  of  testamentary  manumission.  In  1729  there  was 
a  curious  case  of  a  negro's  obtaining  his  freedom  for  revealing 
an  herb  medicine  by  which  wonderful  cures  had  been  effected. 
The  origin  of  the  recognition  of  manumission  by  will  is 
interesting.  It  was  due  to  a  necessity  that  arose  from  the 
American  Revolution.  Lord  Dunmore,  the  royal  governor, 
having  withdrawn  from  the  government  of  Virginia,  it  was 
impossible  at  the  time  to  obtain  the  consent  of  the  governor 
and  council  to  manumission,  as  provided  by  law,  so  that  one 
John  Barr,  having  no  other  recourse,  added  a  codicil  to  his 
will  freeing  two  female  slaves  and  creating  a  trust  in  land  and 
property  in  their  behalf.  Upon  Barr's  death  in  1777  the  will 
was  contested,  but  the  Assembly  passed  a  special  act  confirm 
ing  it  and  the  manumission,  but  declared  that  it  established  no 
precedent  except  for  exactly  similar  cases.  Many  of  these, 
however,  probably  arose  during  the  Revolution.  After  the 
war  manumission  was  fully  established,  not  only  as  to  wills 
but  as  to  any  written  and  sealed  instrument  acknowledged  or 
proved  and  made  a  matter  of  record  in  the  county  court,  by 
the  act  of  1782,  which  stated  that  emancipation  was  "judged 
expedient  under  certain  restrictions." 5  These  were  that  the 
liberator  should  be  responsible  for  the  support  of  imbecile, 
disabled,  superannuated  and  minor  slaves,  else  they  would  have 
been  generally  liberated  to  their  own  and  the  State's  disadvan- 


*Hening,  II.,  260,  267,  280;  III.,  536;  IV.,  133;  X.,  115;  XL,  308; 
General  Court  Records,  1670,  October  4,  p.  21. 

6Hening,  IX.,  320,  321 ;  X.,  221,  372  ;  XI.,  39  ;  Virginia  M3S.t  B.  R.  O., 
1729,  June  29. 


Manumission,  Emancipation,  and  the  Free  Man.     121 

tage.  The  impulse  given  to  manumission  by  will  and  by 
deed  under  the  operation  of  this  act,  is  shown  by  the  yearly 
manumissions,  averaging  over  1,000  for  the  next  ten  years. 
Tucker  estimates  that  2,800  free  negroes  probably  existed  in 
1782,  but  the  census  shows  their  number  to  have  increased  to 
12,866  in  1791.  They  were  more  than  were  to  be  found  in 
the  whole  of  New  England,  and  but  1,087  less  than  in  New 
York,  New  Jersey,  and  Pennsylvania  together.  By  an  act  of 
1783  manumission  was  extended  to  include  even  verbal 
promises  by  masters  of  freedom  for  service  in  arms  in  their 
stead  where  the  free  service  was  rendered.  In  1787  two 
special  acts  recognized  the  validity  of  manumissions  by  devise 
prior  to  1 782.  They  enforced  the  provisions  of  wills,  made  in 
1778  and  1780,  freeing  a  number  of  slaves,  on  the  ground  that 
it  was  deemed  "just  and  proper"  that  the  u  benevolent  inten 
tions  "  of  the  testators  should  be  carried  into  effect.6 

General  manumission  by  will  or  deed  prior  to  1782  could 
only  be  sustained  legally  where  its  effect  was  limited  upon  the 
future  contingency  of  assent  of  the  Assembly  or  of  the  legaliz 
ing  of  this  mode.  By  the  liberal  construction  of  the  courts 
and  Assembly  in  such  cases,  however,  many  slaves  obtained 
their  freedom.  Some  wills  wisely  provided  also  for  condi 
tional  manumission  to  take  effect  after  a  period  of  years,  vary 
ing  from  majority  to  thirty  years,  creating  a  trust  for  the  tes 
tator's  relatives  or  heirs,  in  order  to  prepare  the  slaves  by 
instruction  for  the  proper  enjoyment  of  liberty.  Progressive 
manumission  of  the  children  of  females,  and  of  their  children 
born  before  the  age  limit  was  reached,  often  carried  the  execu 
tion  of  the  will  over  long  periods  and  beyond  the  ordinary 
limitation  of  chattel  remainders,  but  the  trustees  enjoyed  no 
profits  except  the  use  of  the  slave,  and  the  chancellor  attempted 
to  have  even  this  profit  returned  to  the  slave.  Devises  in 
favor  of  charity  and  particularly  those  in  favor  of  liberty  were 
liberally  construed,  so  a  devise  made  by  a  Quaker  in  1781  of 

6 Tucker,  Slavery,  72  and  note;  Blackstone,  66  ;  H>ning,  XII.,  611,  613. 


122  History  of  Slavery  in  Virginia. 

his  slaves  to  the  yearly  meeting  to  be  manumitted  was  held 
good  on  account  of  the  well  known  attitude  of  the  Quakers 
toward  slavery.  Likewise  a  deed  which  freed  a  female  slave, 
reserving  the  right  to  her  issue  as  slaves,  was  voided  as  to  the 
reservation  and  the  woman  and  children  freed.  In  manumis 
sion,  however,  widows'  dower  and  creditors'  interests  had  to 
be  protected,  and  freed  slaves  might  be  taken  or  reduced  to 
servitude  for  a  term  of  years  to  satisfy  the  obligations.7 

The  courts  regarded  the  legacy  of  freedom  a  specific  legacy 
so  the  freed  slave  came  into  the  hands  of  the  executor,  and 
could  not  be  touched  without  his  assent,  and  the  executor  com 
monly  discharged  any  indebtedness  from  other  means  or  hired 
out  the  slaves  till  the  debt  was  paid  before  he  freed  them. 
Deeds  of  manumission  were  admitted  with  great  laxity  by  the 
courts.  Writing  of  the  testator  was  regarded  sufficient  proof, 
though  the  deed  had  never  been  acknowledged  or  recorded  and 
no  witness  was  present  to  establish  it.  Non-cupative  wills 
were  admitted.  Only  a  single  case  of  a  possibly  strained  con 
struction  and  unjust  decision  by  the  court,  defeating  the  plain 
intent  of  several  wills,  is  on  record,  and  this  holding  was 
opposed  by  the  opinion  of  the  legal  profession  in  Virginia, 
and  the  principle  was  reversed  in  other  decisions.  A  testator 
loaned  slaves  to  his  wife  for  life,  provided  that  on  her  death 
they  be  given  the  choice  of  freedom  or  slavery.  Freedom 
was  denied  on  the  ground  that  the  condition  of  slavery  was 
one  of  absolute  civil  incapacity  and  a  slave  could  not  legally 
choose.  Wills  also  frequently  contained  legacies  for  emanci 
pated  slaves,  but  a  will  which  attempted  to  provide  for  care, 
tuition,  and  wages  for  a  slave  and  issue,  intending  to  create  a 
condition  midway  between  slavery  and  freedom,  would  not  be 
sustained.8 


TCall,  Reports,  II.,  270,  292;  V.,  311,  330;  Randolph,  Reports,  IV.,  599; 
Hening  and  Munford,  Reports,  I.,  619;  Grattan,  Reports,  XIV.,  333. 

8  Leigh,  Reports,  V.,  252, 289 ;  VII.,  691 ;  Gratton,  Reports,  II.,  227 ;  XIV., 
138,  139 ;  Minor,  Institutes,  I.,  187. 


Manumission,  Emancipation,  and  the  Free  Man.      12<3 

Several  modes  of  obtaining  freedom  through  the  action  of 
statutory  law  existed.  Until  1794  slaves  imported,  sold  or^ 
bought  contrary  to  the  act  of  1778  declaring  the  importation 
of  slaves  illegal^  were  made  free.  An  act  of  1785  designating 
who  were  slaves  declared,  "  Slaves  which  shall  hereafter  be 
brought  into  this  commonwealth  and  kept  therein  one  whole 
year  together,  or  so  long  at  different  times  as  shall  amount  to 
one  year,  shall  be  free."  This  applied  even  to  Virginia  slaves 
sold  or  transported  into  another  State  and  resold  or  retrans- 
ported  into  Virginia.  Such  cases  arose  with  slaves  removed 
to  Maryland  and  Massachusetts.  A  Massachusetts  man 
came  to  Virginia  and  married  a  women  owning  two  slaves. 
In  1797  he  removed  to  Boston,  intending  to  live  there,  but  as 
by  the  Massachusetts  Constitution  slaves  could  not  legally  be 
held  there  he  came  back  in  the  following  year  to  Virginia,  and 
held  these  slaves  till  they  discovered  in  1828  that  they  had  a 
legal  action  for  freedom.  When  reenacted  in  1792  this  act 
made  an  exception  of  Alexandria  County  in  the  District  of 
Columbia.9 

By  the  act  of  1795  a  very  great  boon  was  given  to  the 
slave  in  the  simplification  of  the  precedure  in  a  suit  for  free 
dom.  A  slave  was  allowed  to  sue  in  forma  pauperis.  He 
made  his  complaint  to  a  local  magistrate  or  court,  who  required 
the  owner  to  give  bond  to  allow  his  slave  to  come  to  the  next 
court  to  maintain  suit.  If  he  refused  the  slave  was  taken  into 
custody  by  the  State,  at  the  master's  expense,  to  protect  him, 
counsel  was  assigned,  process  was  issued  against  the  owner  and 
the  slave  had  free  writs  of  subpoena,  attended  the  taking  of 
depositions,  and  might  come  and  go  freely  in  the  prosecution 
of  his  suit.  A  suit  might  be  instituted  even  without  petition 
to  the  court.  The  same  strictness  of  form  was  not  required 
as  in  other  actions,  irregular  issues  even  were  sustained,  and 
great  liberality  was  shown  by  the  Court  of  Appeals  in  the 


8  Hurd,  Law  of  Freedom,  II.,  2,  4,  5 ;  Call,  Reports,  V.,  425  ;  Leigh,  Reports, 
V.,  615;  Statutes  at  Large,  III.,  76. 


124  History  of  Slavery  in  Virginia. 

cases  that  came  to  it.  Technical  variations  in  the  evidence 
from  the  bill  were  not  noted,  and  decision  followed  equitable 
rather  than  legal  rights.  Cases  were  not  postponed,  except  for 
evidence,  but  came  up  regularly  in  the  first  quarterly  district 
court.10 

In  some  suits  for  freedom  the  courts  held  that  the  burden  of 
proof  lay  upon  the  slave ;  in  others,  particularly  in  cases  of 
importation  after  1786,  freedom  was  assumed  upon  prima  facie 
or  presumptive  evidence.  The  suer  for  freedom  might  elect 
his  own  court  and  the  case  was  given  preference,  being  tried 
without  regard  to  its  place  on  the  docket,  and,  without  the  for 
mality  of  pleading,  a  jury  was  impanneled  to  try  it.  In  case 
of  detention  of  the  slave  during  suit  damages  could  be  awarded 
him.  In  other  suits  a  negro  suing  for  freedom  also  was  treated 
as  a  free  negro.  All  suits  proceeded  without  cost  to  the  slave. 
In  order  to  further  protect  the  man  in  his  right  to  liberty,  cer 
tificates  of  freedom  were  required  as  early  as  1776.  A  regis 
try  of  free  negroes  and  mulattoes,  as  well  as  of  dower  and 
life-estate  slaves,  in  which  the  facts  and  circumstances  of  the 
manumission  and  a  description  of  the  person  were  entered,  was 
after  1803  and  1804  kept  in  every  county.  This  registry  was 
of  great  value  in  preventing  illegal  detention  of  ex-slaves  and 
unjust  suits  for  freedom,  protecting  thus  the  rights  of  both 
masters  and  slaves.  A  suit  for  freedom  might  be  maintained 
by  a  slave  sent  or  hired  out  of  the  State  by  his  master  if  the 
State  to  which  he  went  was  a  free  State,  but  if  it  was  not  and 
the  master  resided  or  owned  lands  in  the  State  his  right  to  the 
slave  was  not  infringed.  Under  the  common  law,  as  it  did  not 
acknowledge  the  institution  of  slavery,  a  slave  might  be 
released  from  his  master's  control  by  writ  of  habeas  corpus, 
even  though  a  temporary  sojourner  in  a  country  where  slavery 
was  not  recognized.  But  if  the  slave  domiciled  again  with 


10  Tucker,  Slavery,  73,  note ;  Statutes  at  Large,  n.  s.,  II.,  19,  79 ;  Washing 
ton,  Reports,  I.,  306;  Hening  and  Munford,  Reports,  I.,  145;  Randolph 
Reports,  IV.,  136,  466. 


Manumission,  Emancipation,  and  the  Free  Man.      125 

the  master  the  rights  of  the  master  were  not  impaired.  If  the 
slave  went  away  or  escaped  without  the  master's  consent  to  a 
non-slave-holding  jurisdiction  he  could  be  reclaimed,  prior  to 
fugitive  slave  acts,11  only  by  express  arrangement.  The  federal 
fugitive  slave  law  of  1793  protecting  a  master's  right,  and 
that  of  1850  employing  the  machinery  of  government  for  the 
restoration  of  his  property  were  of  practical  value  chiefly 
in  arresting  the  growth  of  facilities  for  absconding. 

To  protect  an  imported  slave  in  his  right  to  liberty  under 
the  provisions  of  the  act  of  1786  was  not  always  easy,  as  by 
movement  from  place  to  place  during  a  year's  time  the  proof 
of  the  identity  of  the  slave  might  be  lost;  so  in  1793  an  act 
was  passed  requiring  justices  of  the  peace  who  had  notice  of 
importations  of  slaves,  directly  or  indirectly,  from  Africa  or 
the  West  Indies  to  transport  them  immediately  out  of  Virginia. 
In  the  session  of  1805  and  1806  the  principle  of  the  act  of 
1691  was  revived,  and  no  slave  emancipated  after  the  1st  of 
May,  1806,  could  legally  remain  in  Virginia  after  becoming 
of  age.  In  1819  this  was  so  far  mitigated  that  the  county 
court  might  grant  leave  to  slaves  of  good  character,  "  sober, 
peaceful,  orderly  and  industrious,"  to  remain  in  the  State; 
but  such  permission  granted  to  a  female  did  not  include  her 
issue  and  the  court  might  revoke  its  leave  for  cause  shown. 
This  act  was  incorporated  in  the  third  constitution  of  Virginia 
in  1851,  and  any  slave,  except  one  freed  by  will  prior  to  the 
act  or  permitted  to  remain,  forfeited  his  liberty  after  twelve 
months,  and  might  be  seized  and  sold  by  the  overseers  of  the 
poor  for  the  benefit  of  the  poor.  So  also  any  slave  brought 
in,  sold,  or  hired  for  a  year,  was  not  freed,  but  his  title  vested 
in  the  overseers  of  the  poor,  and  as  a  discouragement  a  severe 
penalty  was  laid  upon  the  person  bringing  such  a  slave  into 


"Tucker,  JBlackstone,  I.,  pt.  II.,  appendix,  48;  Acts  of  Assembly,  1819, 
436;  1826,  25;  1830,  107;  1836,  47;  Leigh,  Reports,  VI.,  607;  Constitu 
tion,  1851,  sec.  20;  Eandolph,  Reports,  VI.,  67  ;  Statutes,  1806,  January  25  ; 
1807,  January  12. 


126  History  of  Slavery  in  Virginia. 

Virginia.  The  slaves  and  servants  of  travellers  and  commer 
cial  men  were  exempted  from  this  provision  in  1807.  In  1812, 
slave-holders  coming  from  other  States  to  reside  in  Virginia 
might  under  some  restrictions  bring  in  slaves,  not  for  sale,  pro 
vided  they  would  within  three  months  afterwards  export  a 
female  slave  between  the  ages  of  ten  and  thirty  years  for  every 
slave  they  imported.  The  evident  intent  of  this  act  was  to 
check  the  natural  increase  of  slaves.  The  restrictions  upon 
slave  importation  were  not  even  partially  removed  until  1819, 
and  decided  limitations  continued  until  1860.  It  was  the 
menace  of  the  free  negro  element  that  chiefly  caused  these 
restrictions  upon  importation  and  manumission  and  the  tardy 
growth  of  the  sentiment  of  general  emancipation.  An  act  of 
1793  attempted  to  prevent  the  immigration  of  free  negroes  and 
mulattoes  by  imposing  the  penalty  of  £100  on  the  person 
bringing  them  in,  and  by  making  the  negroes  liable  to  seizure 
and  removal  to  the  place  whence  they  came,  by  any  citizen, 
at  the  cost  of  the  importer.  In  1860  the  General  Assembly 
was  empowered  to  enforce  restrictions  upon  manumission  and 
to  provide  laws  for  the  relief  of  the  commonwealth  by  remov 
ing  the  free  negro  element.  The  Assembly  was  not  allowed 
hereafter  to  emancipate  any  slave  or  descendant  of  a  slave.12 
The  proper  disposal  of  the  free  negro,  a  question  which, 
dependent  upon  the  large  proportion  of  blacks  to  whites,  was 
peculiar  to  Virginia  and  the  South  and  of  small  consequence 
in  the  North,  retarded  all  movements  for  general  emancipa 
tion.  The  earlier  and  later  advocates  of  enfranchisement,  men 
of  the  greatest  wisdom  and  patriotism  like  Jefferson,  Tucker, 
and  Randolph,  all  thought  that  schemes  of  emancipation  were 
merely  chimeras  or  would  inflict  a  more  serious  social  and 
political  injury  than  slavery  itself,  unless  the  free  negro 
element  was  successfully  removed  from  the  limits  of  the  State. 
As  Jefferson  affirmed,  mixture  with  the  freedrnan  socially  and 


13  Code,  1814,  II.,  126;  Revised  Code,  1819, 1.,  421, 422;  Code..  1849,457, 
749 ;  1860,  511 ;  Statutes  at  Large,  n.  s.,  I.,  239. 


Manumission,  Emancipation,  and  the  Free  Man.       127 

in  blood  raised  an  issue  new  to  the  question  of  slave  emancipa 
tion  on  a  large  scale.  The  racial  difference  of  the  negro  and 
the  Indian,  with  its  distinction  in  color  and  faculty,  was  con 
sidered  a  stain  to  the  blood,  the  beauty  and  the  dignity  of  the 
white  race,  so  that  as  freedom  enhanced  the  danger  of  this 
mixture  freedmen  must  be  removed  beyond  its  remotest  possi 
ble  realization.  This  fear  on  the  part  of  philanthropists, 
together  with  the  avarice  of  the  mean,  Jefferson  thought  were 
the  greatest  obstacles  to  emancipation. 

A  strong  sentiment  even  amongst  the  people,  however,  for 
general  emancipation  several  times  showed  itself,  and  but  for 
the  unfortunate  reaction  produced  by  outside  interference  the 
cause  of  freedom  might  possibly  have  triumphed  in  the 
Assembly  of  1831—32.  In  the  preamble  of  an  amending  act 
of  1794,  providing  an  easy  mode  for  the  recovery  of  freedom 
by  slaves  illegally  detained,  complaint  was  made  against 
voluntary  associations  of  individuals  who,  affecting  to  render 
"justice  toward  persons  unwarrantably  held  in  slavery,"  were 
assuming  the  duties  of  the  government  and  involving  masters 
in  "  unfounded  law  suits/7  or  illegally  depriving  them  of  their 
property  and  causing  "  great  and  alarming  mischiefs  in  other 
States "  which  might  spread  to  Virginia.13  Consequently,  a 
ready  method  of  conducting  suits  of  freedom  was  devised  and 
a  penalty  of  $200  laid  upon  any  one  who  forged  an  instrument 
declaring  or  promising  freedom  to  slaves.  A  further  act  in 
1798  disqualified  members  of  such  societies  as  jurors  in  suits 
for  freedom.14  Thus  early  was  manifested  that  jealousy  and 
fear  of  outside  interference  and  abolition  sentiment  that  helped 
to  defeat  schemes  of  general  emancipation  in  Virginia. 

Some  of  the  first  attempts  at  manumission  by  will  came 
from  the  Quakers.  In  1771  John  Pleasants,  a  Quaker,  made 
a  manumitting  will  which  came  to  probate  in  1800,  and  for 


"Jefferson,  Notes  on   Virginia,  213,  214;    Howison,   Virginia,  II.,  439; 
Revised  Code,  1814,  I.,  485,  486. 
14  Statutes  at  Large,  n.  8.,  II.,  77. 


128  History  of  Slavery  in  Virginia. 

some  time  prior  to  1781  a  Quaker  society  "  had  been  anxiously 
endeavoring,"  said  Judge  Lyons  of  the  Court  of  Appeals  in 
1804,  "to  procure  an  enabling  statute  for  that  purpose  from 
the  legislature."  The  effort  was  no  doubt  instrumental  in 
securing  the  act  for  manumission  by  will.  A  sentiment  favor 
able  to  emancipation  then  existed  among  certain  classes,  a 
minority,  from  quite  an  early  time.  It  was  Jefferson  who 
first  gave  effective  and  forcible  expression  to  this  sentiment. 
His  views  upon  the  dangers  of  both  the  slave  and  the  free 
negro  elements — as  upon  most  subjects  to  which  he  gave 
earnest  thought — deserved  and  received  the  careful  attention 
of  his  contemporaries.  He  disliked  the  institution  of  slavery 
intensely  on  account  of  both  social  and  political  effects  which 
he  either  saw  around  him  or  thought  he  foresaw.13  "  There 
must  doubtless  be,"  he  says  in  1781,  "an  unhappy  influence 
on  the  manners  of  our  people  produced  by  the  existence  of 
slavery  amongst  us.  The  whole  commerce  between  master 
and  slave  is  a  perpetual  exercise  of  the  most  boisterous  passions, 
the  most  unremitting  depotism  on  the  one  part  and  degrading 
submission  on  the  other.  Fathers  give  way  before  the  children 
— children  see  their  passions  and  learn  to  imitate  them,  give 
loose  to  the  worst  of  passions,  and  daily  exercised  in  tyranny 
cannot  but  be  stamped  by  it  with  odious  peculiarities."  Jeffer 
son  said  that  slavery  not  only  destroyed  the  best  morals  of  a 
people  but  their  industry  also,  affirming,  tf  A  very  small  pro 
portion  of  proprietors  are  ever  seen  to  labor."  The  key  to  the 
apparent  fervor  and  extravagance  of  his  language,  which 
became  so  intense,  as  he  proceeded  to  discuss  the  question  in 
his  "  Notes,"  that  he  perforce  breaks  off,  admitting  himself  that 
he  cannot  pursue  the  subject  "  with  temperance,"  is  to  be  found 
in  the  doctrines  of  his  political  creed  and  philosophy.  "  With 
what  execrations,"  he  says,  "  should  statesmen  be  loaded  "  who 
permit  "  one-half  of  the  citizens  to  trample  upon  the  rights  of 
the  other,  transform  those  into  despots  and  these  into  enemies, 

15  Call,  Reports,  V.,  330  ;  Ford,  Jefferson,  II.,  266. 


Manumission ,  Emancipation,  and  the  Free  Man.     129 

destroy  the  morals  of  one  part  and  the  amor  patrice  of  the 
other,"  who  cannot  call  that  his  native  country  "  in  which  he 
is  born  to  live  and  labor  for  another,"  but  must  "  lock  up  all 
the  faculties  of  his  nature — and  entail  his  own  miserable  con 
dition  on  the  endless  generations  proceeding  from  him."  And 
further,  he  asserts  that  the  only  firm  basis  of  the  liberties  of  a 
nation  is  "  the  conviction  in  the  people's  mind  that  their 
liberties  are  the  gift  of  God,"  and  "  slavery  removes  this  convic 
tion."  He  trembled  for  his  country  when  he  thought  of  the 
wrath  of  God  against  this  unjust  violation  of  the  natural 
rights  of  man.  "  God  is  just — his  justice  cannot  sleep  for 
ever,"  he  says,  "  considering  numbers,  nature  and  natural 
means  only  an  exchange  of  situation  between  oppressor  and 
oppressed  is  possible "  and  "  by  supernatural  interference " 
probable.  "  The  Almighty  has  no  attribute  which  can  take 
side  with  us  in  such  a  contest — considerations  of  policy,  of 
history,  natural  and  civil,"  advocate  a  change.  Jefferson's 
denunciation  was  against  slavery  not  only  as  an  abstract  but 
as  a  practical  principle.  It  was  sinful  per  se,  and  logically 
because  of  this  its  fruits  were  those  of  unrighteousness.  He 
wrote  for  French  ears  attuned  to  doctrines  of  equality  and  to 
the  theory  of  the  rights  of  man,  and  in  some  pique,  too  per 
haps,  at  not  being  able  to  convince  his  fellow-citizens  that  the 
practice  of  slavery  was  wrong,  however  wrong  its  theory.16 
But  he  had  a  hearing  even  in  Virginia.  St.  George  Tucker, 
Professor  of  Law  in  William  and  Mary  College,  and  a  judge 
of  the  General  Court  of  Virginia,  felt  like  Jefferson,  that 
slavery  was  "  incompatible  with  the  principles  of  our  govern 
ment  and  that  of  the  Revolution."  "  We  were  imposing,"  he 
says,  "  on  a  fellow  man  who  differed  in  complexion  from  us, 
a  slavery  ten  times  more  cruel  than  the  utmost  extremity  of 
those  grievances  and  oppressions  of  which  we  complained. 
It  is  time,"  he  adds,  in  1796,  "that  we  should  admit  the 
evidence  of  moral  truth  and  learn  to  regard  them  as  our  fellow 

16  Jefferson,  Notes  on  Virginia,  in  Ford  III.,  244,  267. 

9 


130  History  of  Slavery  in  Virginia. 

men  and  equals  except  in  those  particulars  where  accident  or 
possibly  nature  may  have  given  us  some  advantage."  Madi 
son,  Washington,  and  Henry  were  more  conservative,  but 
wished  to  see  the  abolition  of  slavery.  Madison  opposed  the 
admission  into  the  Constitution  of  the  idea  of  property  in 
human  beings.  This  of  all  times  was  the  time  when  the 
slavery  question  should  have  been  settled.  Washington  said, 
"It  is  among  my  first  wishes  to  see  some  plan  adopted  by 
which  slavery  may  be  abolished  by  law."  Henry  wrote  in 
1773  to  a  Quaker  friend,  "  It  [slavery  as  a  principle]  is  as 
repugnant  to  humanity  as  it  is  inconsistent  with  the  Bible  and 
destructive  of  liberty.  Every  thinking  honest  man  rejects 
it  in  speculation,  but  how  few  in  practice  from  conscientious 
motives.  ...  I  am  drawn  along  by  the  general  incon 
venience  of  living  without  them.  I  will  not,  I  cannot,  justify 
it."  Before  the  close  of  the  Revolution  Jefferson  thought  he 
saw  a  distinct  change  of  popular  sentiment.  "  The  Spirit  of 
the  master  is  abating."  he  writes,  "  that  of  the  slave  rising 
from  the  dust,  his  condition  is  mollifying,  the  way  I  hope  pre 
paring  under  the  auspices  of  heaven  for  a  total  emancipation, 
and  this  is  disposed  in  the  order  of  events  to  be  with  the  con 
sent  of  the  masters  rather  than  by  their  extirpation."  But 
none  of  the  leaders,  apologists  or  anti -slavery  men,  had  a 
remedy  to  offer  adequate  to  the  disease,  and  a  favorable  popu 
lar  sentiment,  which  might  have  sustained  a  change  promising 
success,  languished  for  nearly  half  a  century  longer  till  finally 
quenched  by  jealousy  of  outside  interference.17 

Three  well-defined  plans  for  a  gradual  general  emancipa 
tion  were  publicly  presented  in  Virginia.  They  were  all 
based  upon  a  two-fold  principle :  (1)  emancipation  only  of 
slaves  born  after  a  certain  future  time,  especially  females  ;  and 
(2)  removal  of  the  free  colored  population  beyond  the  limits  of 
the  United  States.  The  first  provision  was  necessary  to  pro- 


17  Tucker,  Blackstbne,  App. ,  55;  Adams,  South-Side   View  of  Slavery,  106  > 
Ford,  Jefferson,  II.,  267  ;  Bancroft,  United  States,  VI.,  416,  417. 


Manumission  j  Emancipation,  and  the  Free  Man.     131 

tect  vested  interests,  the  second  to  protect  society  in  the  other 
States.  This  would  not  have  been  possible  if  the  progressive 
emancipation  of  some  northern  States  had  been  adopted,  as  it 
both  permitted  the  residence  of  free  blacks  and  encouraged 
their  sale  by  natural  economic  law  to  the  slave  States  prior  to 
emancipation.  The  prevention  of  this  latter  eifect  as  to  sur 
rounding  slave  States  in  the  South  could  only  reasonably  be 
looked  for  in  the  simultaneous  application  of  similar  plans 
there  or  in  laws  against  slave  importations.  The  burden 
might  have  been  shifted  gradually  from  State  to  State  till  it 
was  removed  from  the  borders  of  the  Union,  but  such  a  plan 
would  not  commend  itself  to  either  just  or  practical  men. 
The  notion  of  freeing  the  whole  body  of  southern  or  northern 
slaves  at  once  without  Federal  intervention  and  compensation 
was  regarded  as  absurd  by  all  thinking  men  North  and  South 
until  the  rise  of  the  abolitionists.  In  1824,  forty-five  years 
after  suggesting  his  plan,  Jefferson  wrote  to  Jared  Sparks, 
"  I  have  never  been  able  to  conceive  any  other  practicable 
plan."  The  idea  of  freeing  one  and  a  half  millions  of  slaves 
in  the  United  States  and  of  sending  off  the  whole  body  at 
once  "  nobody  conceives  to  be  practicable  for  us  nor  expedient 
for  them.  As  property  they  are  lawfully  vested  and  cannot 
be  taken  away."  To  buy  them  he  thought  was  too  expensive. 
Valued  at  $200  each  it  would  require  $600,000,000  to 
absolve  the  master's  claims,  and  to  this  must  be  added  the 
cost  of  transportation  and  of  implements  to  establish  them  in 
independence,  some  $300,000,000  more.  The  total  final  cost 
would  not  be  less  than  $36,000,000  a  year  for  twenty-five 
years,  so  he  declares,  "  It  cannot  be  done  in  this  way,"  but  we 
must  "emancipate  the  after  born."  Valuing  the  infant  at 
$12.50,  he  hoped  to  reduce  the  property  cost  to  $37,500,000.18 
With  such  sentiments  Jefferson,  as  one  of  the  committee 
appointed  by  the  first  Assembly  of  the  Commonwealth  to  re 
vise  the  whole  code  of  Virginia  and  to  purge  it  of  all  "  prin- 

18  Randolph,  Memoirs  of  Jefferson,  IV.,  388,  et  scq. 


132  History  of  Slavery  in  Virginia. 

ciples  inconsistent  with  Republicanism,"  had  outlined  a  plan 
which  was  reported  to  the  legislature  in  1779  together  with 
the  joint  work  of  Wythe  and  Pendleton  on  the  code.  The 
proposition  was  put  forward  as  an  amendment  to  the  bill  of 
laws  and  was  to  be  offered  when  the  bill  was  taken  up. 
Tucker  states,  however,  that  for  some  reason,  not  certainly 
known,  the  measure  was  not  brought  forward  in  the  Assembly, 
"  possibly,"  he  suggests,  "  because  objections  were  foreseen  to 
that  part  of  the  bill  which  related  to  the  disposal  of  the  blacks 
after  they  had  attained  a  certain  age."  The  plan  was  to 
emancipate  all  slaves  born  after  the  passage  of  the  act.  They 
were  to  remain  with  their  parents  till  a  certain  age  and  then  to 
be  educated  at  public  expense  in  "tillage,  arts  or  sciences" 
until  of  age,  which  was  18  years  for  females  and  21  years  for 
males.  They  were  then  to  be  colonized  in  "  such  place  as  the 
circumstances  of  the  time  should  render  most  proper,"  to  be 
furnished  with  aarms,  implements,  seeds,  pairs  of  useful 
domestic  animals  and  household  implements,"  and  to  be  de 
clared  "  a  free  and  independent  people  "  under  "  our  alliance  and 
protection  "  until  strong  enough  to  stand  alone.  The  displace 
ment  of  labor  thus  caused  was  to  be  remedied  by  the  impor 
tation  of  "  an  equal  number  of  whites  sent  for  by  vessels  to 
other  parts  of  the  world." 

To  deal  with  the  free  negro  question  as  the  United  States 
has  since  seen  fit  to  do  was  in  Jefferson's  opinion  the  height  of 
folly.  It  was  futile  to  hope  to  "  retain  and  incorporate  the 
blacks  into  the  state."  "  Deep  rooted  prejudices  of  the  whites, 
ten  thousand  recollections  of  blacks  of  injuries  sustained,  new 
provocations,  the  real  distinction  nature  has  made  and  many 
other  circumstances  will  divide  us,"  he  predicts,  "  into  parties 
and  produce  convulsions  which  will  probably  never  end  but  in 
the  extermination  of  one  or  the  other  race."  Amalgamation 
he  regarded  as  both  revolting  and  socially  impossible.  He  felt 
the  black  was  too  far  the  inferior  of  the  white  in  physical  and 
mental  qualities,  though,  strange  to  say,  he  defended  his  morals. 
No  place  was  suggested  for  the  colony,  but  he  secretly  hoped 


Manumission,  Emancipation)  and  the  Free  Man.     133 

one  would  open  up  in  "the  revolutionary  state  of  America 
then  commenced."  19 

This  hope  he  thought  was  realized  in  1824  jn  independent 
St.  Domingo  under  the  control  of  blacks,  who  were  willing  to 
receive  the  freedmen  as  citizens  and  to  pay  the  cost  of  transpor 
tation.  The  chief  expense  thus  left  was  the  rearing  of  infants, 
which  he  suggested  might  be  borne  by  appropriations  from  the 
vacant  lands  "  ceded  [to  the  United  States]  by  the  very  States 
now  needing  relief."  The  property  loss  now  involved  amounted 
to  only  half  of  the  direct  taxes  annually  continued  for  twenty- 
five  years,  and  this  would  be  gradually  lessened  for  the  next 
twenty-five  years,  which  would  mark  its  final  extinction. 
"  And  this  amount,"  he  urged,  "  was  paid  not  in  cash,  but  by 
the  delivery  of  an  object  which  the  Virginians  had  never 
known  nor  computed  as  a  part  of  their  property,  and  those 
who  did  not  possess  it  would  be  called  on  for  nothing."  "  Who 
could  estimate,"  he  says  of  this  project,  "  its  blessings  !  I 
leave  this  to  those  who  will  live  to  see  its  accomplishment  and 
to  enjoy  a  beatitude  forbidden  to  my  age,  but  I  leave  it  with 
this  admonition,  to  arise  and  be  doing."  The  notion  of  the 
master  meeting  the  State  half  way  and  compromising  upon  a 
mutual  property  sacrifice  was  afterwards  taken  up  by  Faulkner, 
who  held  that  the  State  had  a  right  to  destroy  property  in 
slaves,  and  also  by  McDowell,  who  urged  a  like  principle 
against  Goode  in  the  debate  of  1831-32.20 

Tucker,  Jefferson's  contemporary,  felt  like  him  that  Divine 
Providence  would  aid  and  smile  upon  the  emancipation  of 
slaves.  "But  human  prudence  forbids,"  he  says,  "that  we 
should  engage  in  a  work  of  such  hazard  as  a  general  and 
simultaneous  emancipation."  "Immediate  emancipation"  to 
him  meant  "  immediate  and  general  famine,"  which  the  pro 
ducts  of  all  the  other  States  even  could  not  relieve,  for  south 


19  Ford,  Jefferson,  II.,  242,  245;  Tucker,  Slavery,  73. 

20  Randolph,  Memoirs  of  Jefferson,  IV.,  388,  et  seq.;  Faulkner's  Speech, 
14-16;  Richmond  Whig,  March  24,  1832. 


134  History  of  Slavery  in  Virginia. 

of  Delaware  there  was  a  slave  population  of  nearly  650,000, 
which  was  more  than  half  the  white  population,  while  in 
agricultural  labor  there  were  four  slaves  to  every  free  white 
man.  The  question  was  thus  more  similar  to  that  in  the 
French  West  Indies  than  to  that  in  Massachusetts,  where  the 
proportion  of  whites  to  blacks  was  sixty-five  to  one.  The 
other  difficulty  was  the  future  of  the  negroes  themselves. 
They  must  be  prepared  for  their  future  condition.  To  expel 
them  all  at  once  from  the  United  States  meant  "  lingering 
death  by  disease,"  or  as  natural  "  idlers  "  and  "  profligates  " 
they  would  be  exposed  to  the  misery  of  an  insufficient  subsist 
ence.  The  plan  he  proposed  in  1796  was  to  effect  the  u  aboli 
tion  of  slavery  without  emancipating  a  single  slave."  He 
objected  to  Jefferson's  colonization  scheme  on  the  ground  of 
the  expense,  which  was  five  times  greater  than  the  annual 
revenue  of  Virginia,  and  on  the  ground  of  the  incapacity  of 
(l  hordes  of  vagabonds,  robbers,  and  murderers  in  their  still 
savage  state  and  debased  "  condition  "  to  govern  themselves. 
If  colonized  in  the  United  States  internal  warfare  or  Indian 
hostility  would  extirpate  them,  if  outside,  their  destruction  as 
invaders  was  almost  as  certain.  To  incorporate  them  into 
the  body  politic  was  a  menace  to  the  whites,  and  an  impossi 
bility.  Some  middle  course  had  to  be  found,  he  urged,  be 
tween  the  "  tyrannical  and  iniquitous  policy  "  which  held  "  so 
many  human  creatures  in  a  state  of  grievous  bondage  and  that 
which  would  turn  loose  a  numerous  starving  and  enraged 
banditti  upon  the  innocent  descendants  of  their  former  oppres 
sors." 

Tucker's  plan,  consequently,  was  partly  made  up  from 
Jefferson's  and  partly  from  those  of  other  States.  It  provided 
that  after  the  adoption  of  the  plan,  (1)  every  female  born  and 
her  issue  should  be  free,  but  should  remain  with  the  family  as 
servants  for  twenty-eight  years  and  then  receive  appropriate 
freedom  dues  for  a  start  of  life,  being  treated  during  their  ser 
vitude  in  all  respects  as  white  servants  and  apprentices  ;  (2) 
civil  slavery  should  be  retained,  and  officeholding,  action  as 


Manumission,  Emancipation,  and  the  Free  Man.     135 

an  attorney,  juror  or  witness  except  in  cases  between  blacks, 
franchises,  or  interests  in  lands  greater  than  a  twenty-one-year 
lease  should  be  prohibited.  And  further  the  emancipated 
were  not  to  keep  or  bear  arms,  except  under  legal  limitations ; 
nor  to  marry  a  white ;  nor  to  be  an  executor  or  administrator  ; 
nor  to  be  capable  of  making  a  will  or  acting  as  a  trustee ;  nor  of 
maintaining  any  real  action,  but  they  were  to  be  tried  in 
criminal  cases  as  free  negroes  and  mulattoes  were  at  that  time 
entitled  to  be.  This  provision  was  a  compromise  to  prejudice, 
but  with  a  distinct  object.  The  privileges  were  to  be  enlarged 
as  occasion  demanded,  and  the  personal  rights  and  property 
of  the  servants,  though  limited,  were  to  be  protected  by  law. 
"  By  denying  them,"  said  Tucker,  "  the  most  valuable  privi 
leges  which  civil  government  affords  I  wish  to  render  it  their 
interest  to  seek  those  privileges  in  some  other  climate."  He 
seems  to  have  had  Spanish  territory  in  view,  and  hoped  the 
cutting  off  of  ambition,  power  of  resentment,  and  landed 
property  would  be  sufficient  to  induce  emigration  as  a  substi 
tute  for  colonization. 

His  plan  was  based  upon  a  deduction  from  Jefferson's 
theory  of  inalienable  rights  and  natural  equality,  that  no 
property  could  exist  in  an  unborn  child.  "  The  right  of  one 
man  over  another,"  he  said,  "  is  neither  founded  in  nature  nor  in 
sound  policy.  It  cannot  extend  to  those  not  in  being.  No 
man  can  be  deprived  of  what  he  doth  not  possess."  He  esti 
mated  that  no  male  would  be  fully  emancipated  for  45  years 
and  that  it  would  take  over  a  century  to  complete  the  process. 
Not  for  forty  years  would  slave  population  diminish  ;  on  the 
contrary  for  thirty  years  it  would  increase,  and  after  sixty 
years  one-third  of  the  number  of  then-existing  slaves  would 
remain,  while  the  bound  blacks  under  twenty-eight  years  of 
age  would  equal  the  original  number  of  slaves.21  The  plan 
was  elaborated  and  published,  together  with  a  dissertation 
upon  slavery,  in  the  appendix  to  his  commentaries  on  Black- 

21  Tucker,  Blackstone,  Appendix,  pt.  II.,  Vol.  I.,  68,  72,  75,  79. 


136  History  of  Slavery  in   Virginia. 

stone,  and  as  a  separate  pamphlet  in  1796 ;  but  although 
widely  read  it  bore  no  fruit.  The  time  was  not  yet,  and  the 
proposed  disposition  of  the  negro  element,  as  was  the  case 
with  Jefferson's  plan,  was  sufficient  to  defeat  its  acceptance. 
It  is  interesting  that  he  looked  for  the  natural  abolition  of 
slavery  through  the  form  by  which  it  naturally  arose,  servi 
tude.  This  was  both  logical  and  possible  if  the  emigration  of 
the  freedmen  would  have  been  forced  by  the  restrictions  and 
economic  law,  but  this  was  the  doubtful  feature. 

Many  Virginians  on  the  failure  of  these  plans  turned  their 
hopes  toward  the  project  of  the  African  Colonization  Society, 
the  establishment  of  the  colony  of  Liberia,  and  lent  their 
earnest  support  to  insuring  its  successful  inception  and  con 
tinuance.  Many  slaves  were  manumitted  by  their  owners  on 
the  promise  that  they  would  become  colonists,  and  many  more 
were  freed  by  will  on  this  specific  condition.  In  some  cases 
they  refused  this  alternative  and  chose  to  remain  slaves  rather 
than  be  deported  to  Africa.  Some  even  escaped  from  the  decks 
of  vessels  leaving  Baltimore  and  made  their  way  back  to 
Virginia  to  become  slaves.  The  success  of  the  colonization 
movement  which  finally  resulted  in  the  formation  of  the 
African  Colonization  Society  was  largely  due  to  the  suggestions 
and  aid  of  Jefferson,  Monroe,  Mercer,  Randolph,  Bushrod 
Washington  and  other  Virginians,  supported  by  several  acts 
of  the  State  Legislature  from  1800  to  1816.  It  was  through 
Monroe  at  the  instance  of  Robert  Goodloe  Harper  that  the 
society  received  Federal  countenance  and  became  a  general  in 
stead  of  a  local  movement.  It  represented  a  southern  as  well 
as  a  northern  movement  toward  emancipation,  combining 
with  the  Christianization  of  Africans  a  step  toward  the  solu 
tion  of  the  negro  problem.  Maryland,  Virginia,  and  North 
Carolina  were  not  behind  other  States  like  New  York  and 
Pennsylvania  in  direct  aid  or  encouragement  through  State 
societies.  An  act  of  the  Virginia  Legislature  in  1850  appro 
priated  $30,000  annually  for  five  years  to  transport  free 
negroes  to  Liberia  through  the  Virginia  Colonization  Society. 


Manumission,  Emancipation,  and  the  Free  Man.     137 

In  1853  a  colonization  board  was  appointed,  with  a  like 
appropriation  for  five  years,  to  be  raised  by  bequests  and  a  tax 
of  $1  each  on  free  negroes  between  twenty-one  and  forty-five 
years  old.  Even  in  later  years,  after  the  war,  Virginia  gave 
one  of  her  bravest  soldiers,  the  Rt.  Rev.  Charles  Clifton 
Penick,  to  labor  efficiently  as  a  missionary  and  Episcopal 
Bishop  among  these  freedmen  at  Cape  Pal  mas,  and  not  least 
among  the  presidents  of  the  Republic  of  Liberia  was  a 
Virginia-born  slave,  James  S.  Payne.22 

The  third  plan  for  emancipation,  distinctly  formulated  and 
proposed  in  the  Virginia  Assembly  of  1831-32,  was  that  of 
Thomas  Jefferson  Randolph,  a  nephew  of  Jefferson.  It  was 
a  result  of  the  exciting  circumstances  surrounding  the  insur 
rection  of  Nat  Turner.  Says  Dew  in  his  review  of  the  famous 
debate  on  the  subject  that  year:  "Consternation  and  dismay  all 
through  the  State — rumors  of  disaffections,  plots  and  insurrec 
tions  and  even  of  massacres,  frightened  the  timid  and  occa 
sioned  in  the  minds  of  many  even  in  the  lower  parts  of 
Virginia  anxiety  to  remove  this  monstrous  evil.  Plans  for 
partial  and  total  emancipation  were  earnestly  pressed  upon  the 
attention  of  the  legislature."  "  Never  before,"  he  says,  "  had 
the  subject  of  emancipation  been  seriously  discussed  in  any  of 
the  legislatures  of  our  Southern  slave-holding  country." 
Some  persons  looked  to  the  Colonization  Society.  Some  were 
disposed  to  strike  at  the  root  of  the  evil  and  to  call  upon  the 
General  Government  to  extirpate  slavery.  "  But  State  pride," 
he  continues,  "  could  not  be  a  suppliant  to  a  General  Govern 
ment  whose  unconstitutional  action  she  had  ever  been  foremost 
to  resist."  A  resort  to  the  legislature  of  the  State  was  at  last 
forced.  "  The  Legislature,"  he  says,  "  was  composed  of  an 
unusually  large  number  of  young  and  inexperienced  men," 
and  this,  together  with  the  fact  that  "  no  enlarged  wise  or 
practical  plan  of  operations  was  proposed  by  the  abolitionists," 


22  McPherson,  Liberia,  Johns  Hopkins  University  Studies,  16-19,  31-33, 
53-59 ;  Acts,  1849-50. 


138  History  of  Slavery  in  Virginia. 

contributed  toward  defeat.  The  debate,  however,  was  eloquent 
and  long  sustained,  a  great  number  of  speakers  appearing  in 
it,  and  "  day  after  day  multitudes  thronged  the  Capital "  to 
hear  the  speeches.  The  Assembly  "  in  its  zeal  for  the  dis 
cussion  set  aside  all  prudential  considerations,"  such  as  the 
possible  effect  of  incendiary  utterances  that  might  make  the 
slave  believe  his  lot  one  of  injustice  and  cruelty  and  so  give 
him  the  excuse  of  a  revolt,  or  might  encourage  further  aggres 
sions  by  northern  abolitionists.  "  Regardless  of  this,"  says 
Dew,  "  the  Assembly  openly  and  publicly  debated  the  subject 
before  the  world"  and  the  whole  matter  was  submitted  to  a 
thorough  discussion.  All  seemed  to  be  perfectly  agreed  in  the 
necessity  of  removal  in  case  of  emancipation.  Three  propo 
sitions  were  brought  forward :  (1)  Deportation  of  the  whole 
mass  to  Africa  was  urged  by  the  members  of  the  lower  coun 
ties — it  might  be  there  made  a  means  of  Christianizing  the 
heathen.  The  objections  raised  to  this  were  first,  cost — slaves 
representing  one-third  of  the  wealth  of  the  State  and  half  that 
of  lower  Virginia,  and,  valued  at  $200  each,  would  require  a 
first  outlay  of  $94,000,000— and  second,  the  claim  that  land 
values  depended  on  slavery;  (2)  Deportation  and  colonization 
in  Africa  of  the  increase  only — which  at  that  time  was  about 
6,000  a  year — was  proposed  by  those  who  thought  the  profit 
of  selling  slaves  to  the  Southwest  was  an  encouragement  to  the 
retention  of  the  system.  This  of  course  would  find  no  general 
support,  as  value  and  transportation  would  cost  the  State 
$1,380,000,  a  year  while  the  domestic  slave  trade  accomplished 
the  same  result  as  far  as  removal  was  concerned  without  cost ; 
(3)  The  plan  proposed  by  Randolph.23  This  not  only  denied 
the  master's  property  right  according  to  the  principle  partus 
sequitur  ventrem,  but  put  upon  him  the  obligation  of  raising 
and  maintaining  the  child  till  of  age  at  eighteen  or  twenty-one 
years.  The  assumption  was  that  the  labor  of  the  child  after 


28  Dew,  Review  of  the  Debate  of  1832,  Madison  Pamphlets,  Vol.  XIV.,  6, 
8,  47,  et  seg. 


Manumission,  Emancipation,  and  the  Free  Man.     139 

twelve  or  fourteen  years  would  offset  the  cost  of  the  preceding 
years.  The  proposition  was  to  emancipate  all  born  after  1840 
and  that  the  freedraan  should  earn  and  pay  his  own  transpor 
tation  from  America.  To  do  this  he  was  to  be  hired  out  after 
becoming  of  age  till  he  accumulated  enough  for  his  passage. 
The  plan  was  harshly  criticized.  Dew  says,  "  Scarcely  any  of 
the  legislature,  we  believe  not  even  the  author  himself,  entirely 
approved  of  this  plan." 

The  failure  of  the  Virginia  advocates  of  emancipation  to 
agree  and  to  combine  for  any  length  of  time  upon  a  single 
definite  or  practicable  plan  strengthened  the  forces  of  their 
opponents  and  caused  their  final  defeat  by  a  small  majority. 
Will  was  not  wanting,  but  method  unhappily  was.  The 
effect  of  this  failure  was  to  create  the  feeling  among  the  peo 
ple  of  Virginia  that  the  negro,  slave  or  free,  was  an  incubus, 
hopelessly  irremovable ;  and  on  the  part  of  northern  aboli 
tionists,  now  in  the  first  freshness  of  their  zeal,  an  aggressive 
ness  that  inflamed  resentment  in  Virginia  and  prevented  a 
future  calm  consideration  of  the  problem. 

To  many  the  debate  had  shown  the  slow  progress  of  Vir 
ginia  in  population,  "an  unerring  symptom,"  says  Dew,  "of 
her  want  of  prosperity  and  the  inefficacy  of  slave  labor."  It 
was  held  that  slave  labor  could  no  longer  be  truly  profitable 
except  in  cotton,  sugar,  rice  and  such  crops.  It  shut  out 
manufactures  and  profitable  immigration,  while  it  was  causing 
the  emigration  of  some  of  the  best  elements  of  Virginia's 
population  to  new  lands  in  the  West  and  South.  White 
emigration  had  reached  an  average  of  3000  persons  a  year  by 
1830.  This  symptom  of  over-density  of  blacks,  now  for  the 
first  time  generally  recognized,  had  become  so  marked  in  the 
next  ten  years  that  George  Tucker,  a  professor  of  Philosophy 
and  Political  Economy  in  the  University  of  Virginia,  from 
an  extended  study  of  the  census  reports,  predicted  the  early 
extinction  of  slavery  in  Maryland  and  Virginia  and  the  final 
progress  of  extinction  Southward  based  upon  economic  causes 
alone,  chiefly  that  of  the  relation  of  a  dense  immobile  popula- 


140  History  of  Slavery  in  Virginia. 

tion  to  land  and  subsistance.  The  distinguished  Bishop 
Meade,  of  the  Episcopal  Church,  in  1857  went  even  further 
in  denunciation  of  the  effects  of  slavery.24  After  fifty  years  of 
observation  and  thirty  years  travel  over  the  State,  conversing 
with  the  most  intelligent  Virginians,  he  gave  as  his  opinion 
that  slavery  injured  Virginia's  religious,  political,  and  agri 
cultural  interests.  "  Notwithstanding,"  he  says,  "  the  cruelties 
accompanying  the  African  slave  trade,  the  advantage  of  it  has 
been  on  the  side  of  the  negro  temporally  and  spiritually,  [yet] 
wasteful  agriculture  and  consequent  emigration  must  be 
admitted.  Large  estates  cultivated  by  slaves  prevented  the 
establishment  of  villages,  churches,  and  schools,"  and  "  pro 
duced  in  many  sons  of  Virginia  gentlemen  the  feeling  that 
labor  was  a  disgrace."  But  he  continues,  "  among  the  upper 
classes,  there  is  far  more  academic  and  collegiate  education  in 
Virginia  than  in  any  other  State,  and  slavery  brings  out  more 
good  feelings  than  bad."  As  to  emancipation,  he  said  that  if  it 
was  more  to  the  negroes'  good  than  to  their  masters7  injury 
he  was  sure  God  would  reveal  it.  Such  was  the  sentiment  of 
the  well  informed. 

Arguments  advanced  against  slavery  itself  rather  than  for 
the  protection  of  society,  though  presented  in  the  debate  of 
1831-32,  had  but  a  limited  recognition.  As  to  the  fear  of  in 
surrection  even,  it  was  urged  that  no  place  in  the  world  was 
more  secure  than  Virginia,  that  in  the  country  generally 
houses  were  left  open  at  night.  The  ethical  and  political 
arguments  based  upon  Jefferson  and  Montesquieu  were  denied 
and  easily  refuted  to  the  full  satisfaction  of  the  pro-slavery 
men  of  the  Assembly.  Such  arguments,  frequently  advanced 
by  northern  an ti -slavery  leaders,  would  have  been  condemned 
for  that  alone  if  for  no  other  reason.  The  opening  of  the 
great  Southwest  just  at  this  time  to  land  speculation,  the  pro 
duction  of  a  great  staple  like  cotton,  the  immigration  of 
planters  all  had  the  effect  of  diverting  their  attention  for  a 

24  Tucker,  United  States,  108-118;  Meade,  Old  Churches,  L,  90,  note. 


Manumission,  Emancipation,  and  the  Free  Man.     141 

time,  if  not  of  raising  a  hope  in  anti-slavery  men  at  the  old 
South  that  the  demand  for  slaves  and  the  shifting  of  slave 
population  might  relieve  the  dangerous  congestion  of  the 
black  element  and  give  time  for  devising  a  practicable  means 
of  realizing  their  aims ;  but  these  aims  were  not  forgotten.25 
The  exaggerated  influence  ascribed  at  the  North  in  that  day, 
and  even  in  this,  to  cotton  as  the  chief  cause  of  the  preserva 
tion  of  slavery  is  well  refuted  by  the  Rev.  Dr.  Nehemiah 
Adams  of  Boston,  who  early  in  the  fifties  spent  three  months 
in  Georgia,  South  Carolina,  and  Virginia  impartially  studying 
the  question  of  slavery.  He  was  one  of  the  New  England 
clergy  who  framed  a  remonstrance  against  the  extension  of 
slavery  into  Nebraska  and  Kansas,  and  whose  last  act  on  leav 
ing  Boston  was  to  sign  this  remonstrance.  Regardless  of 
preconceived  opinions  and  anti-slavery  sentiment,  far  more 
than  Olmstead,  the  New  York  farmer,  he  was  converted  to 
the  southern  view  of  the  question  when  he  came  into  actual 
contact  with  the  institution  as  practiced.  He  wrote  a  book  for 
the  benefit  of  his  northern  friends,  which  went  through  two 
editions,  one  in  1854  the  other  in  1860,  whose  motto  was, 
"  Hands  off!  The  question  is  a  domestic  one  best  settled  by 
the  South  and  only  delayed  and  hampered  by  interference  from 
without."  He  explains  the  inactivity  of  southern  anti- 
slavery  men  after  1832,  not  by  cotton  'and  reconversion  to 
"  avarice "  and  "  immortality,"  but  solely  by  the  action  of 
abolition  societies  at  the  North  in  scattering  publications,  as 
he  says,  "  through  the  South,  whose  direct  tendency  was  to  stir 
up  insurrection  among  the  colored  people.  A  travelling  agent 
of  a  Northern  society  was  arrested,  and  on  searching  his  trunk 
there  were  found  some  prints  which  might  well  have  wrought 
as  they  did  upon  the  feelings  of  the  Southern  people.  These 
prints  were  pictorial  illustrations  of  the  natural  equality 
before  God  of  all  men  without  distinction  of  color,  and  setting 
forth  the  happy  fruits  of  a  universal  acknowledgment  of  this 

85  Dew,  Debate,  113. 


142  History  of  Slavery  in  Virginia. 

truth,  by  exhibiting  a  white  woman  in  no  equivocal  relations 
to  a  colored  man.  Incendiary  sentiments  and  pictures  had  for 
some  time  made  their  appearance  on  Northern  handkerchiefs 
for  Southern  children  and  servants.  The  old-fashioned  blue- 
paper  wrappers  of  chocolate  had  within  them  some  eminently 
suggestive  emblems.  When  these  amalgamation  pictures  were 
discovered,  husbands  and  fathers  at  the  South  considered  that 
whatever  might  be  true  of  slavery  as  a  system,  self-defense, 
the  protection  of  their  households  against  a  servile  insurrection, 
was  their  first  duty.  Who  can  wonder  that  they  broke  into 
the  post-office  and  seized  and  burned  abolition  papers ;  indeed 
no  excesses  are  surprising  in  view  of  the  perils  to  which  they 
saw  themselves  exposed.  Then  ensued  those  more  stringent 
laws,  so  general  now  throughout  the  slave-holding  States  for 
bidding  the  slave  to  be  publicly  instructed.  Those  laws  re 
main  to  this  present  day;  they  are  disregarded  indeed  to  a 
very  great  extent  by  the  people  themselves,  but  they  remain 
in  order  to  be  enforced  against  Northern  interference.  To  the 
question  why  various  things  are  not  done  to  improve  the  con 
dition  of  the  blacks,  the  perpetual  answer  from  men  and  women, 
who  seek  no  apology  is  (  we  are  afraid  of  your  abolitionists/ 
Whoever  moves  for  redress  in  any  of  these  things  is  warned 
that  he  is  playing  into  the  hands  of  Northern  fanatics.  They 
seem  to  be  living  in  a  state  of  self-defense,  of  self-preservation 
against  the  North — as  Northern  zeal  has  promulgated  bolder 
sentiments  with  regard  to  the  right  and  duty  of  slaves  to 
steal,  burn,  and  kill  in  effecting  their  liberty,  the  South  has 
intrenched  itself  by  more  vigorous  laws  and  customs.  Noth 
ing  forces  itself  more  constantly  upon  the  thoughts  of  a 
Northerner  at  the  South,  who  looks  into  the  history  and  pres 
ent  state  of  slavery,  than  the  vast  injury  which  has  resulted 
from  Northern  interferences." 2G 

The  best  energy  of  both  sections  was  wasted  on  slavery 
polemics  on  one  side  and  apologetics  on  the  other.     To  accuse 

26  Adams,  South-Side  View  of  Slavery,  7, 11,  106,  107,  108,  110. 


Manumission  j  Emancipation,  and  the  Free  Man.     143 

the  slave-holder  of  sin  per  se  demanded  a  moral  and  ethical 
defense,  and  volume  after  volume  appeared  against  the  doc 
trines  of  anti-slavery  tract  societies,  either  shifting  a  like 
responsibility  for  the  sin  upon  the  accuser's  shoulders  or  assert 
ing  Divine  as  well  as  historic  sanction  for  the  institution. 
Little  calm  consideration  could  be  given  in  this  war  of  words 
and  prejudice  to  the  true  economic  and  political  relations  and 
effects  of  the  institution,  but  a  few  of  the  apologists,  like  Dab- 
ney,  Fitzhugh,  and  Smith  made  certain  contributions  toward 
an  attempted  scientific  defense  of  the  Virginia  system,  nega 
tiving  some  unhistorical  a  priori  conceptions  and  deductions  of 
Jefferson  and  his  followers.  Dabney  and  Fitzhugh  showed 
conclusively  that  the  social  and  economic  fault  lay  not  wholly 
with  the  system  of  slavery,  but  with  the  inevitable  black 
population  which  Virginia  had  earnestly  tried  to  exclude  and 
failed,  and  with  exclusive  agriculture  and  non-rotating  crops 
after  the  period  of  natural  exploitation  was  over.  Simple 
emancipation  was  merely  postponement,  not  solution  of  the 
problem,  and  raised  more  grievous  issues  than  slavery  itself. 
Smith,  in  his  lectures  to  college  students  and  the  public, 
applied  his  logic  to  refute  the  Jeffersonian  doctrine  of  rights 
and  the  arguments  for  immediate,  simultaneous,  and  pro 
gressive  emancipation.  The  first  and  second  propositions 
were  politically  and  economically  impossible.  The  third 
would  entirely  shift  the  burden  upon  the  slave  States  to  the 
South,  as  had  been  done  by  the  action  of  laws  in  the  northern 
States,  that  emancipated  not  slaves,  but  the  after  born,  and 
few  of  these  it  was  claimed.  Admitting  the  proposed  pro 
gression,  first  the  District  of  Columbia,  Delaware,  and  Mary 
land,  then  Virginia,  then  Kentucky,  then  Missouri,  etc.,  as  a 
cordon  of  buffer  States  would  be  relieved.  The  result  would 
be  to  congest  slaves  by  hundreds  and  thousands  in  the  hands 
of  a  few  proprietors  in  the  Southwest,  which  would  eliminate 
wholly  the  domestic  element — the  chief  mitigating  influence 
of  slavery — and  render  the  slave  a  mere  instrument  of  toil,  an 
economic  machine  in  the  hands  not  of  the  absentee  employer 


144  History  of  Slavery  in  Virginia. 

but  of  his  steward  or  agent,  a  result  which  could  only  be 
termed  "  brutal." 27 

The  effect  of  constant  attack  and  repulse  in  periodical 
literature,  books  and,  last  but  not  least,  in  the  daily  press  was 
that  the  question  of  emancipation  in  Virginia  was  wholly 
obliterated  in  the  irritated  state  of  general  public  sentiment 
which  was  already  wrought  to  such  a  pitch  of  excitement  by 
other  public  questions,  that  the  only  arbitrament  for  one  and 
all  was  in  recourse  to  arms.  Several  acts  of  legislation 
nevertheless  favored  freedom  in  this  troublous  period,  such  as 
the  provision  of  the  code  of  1849,  interpreted  by  the  courts  to 
free  the  increase  of  any  female  slave,  though  born  before  her 
manumission  went  into  effect.  This  was  repeated  in  the  code 
of  1860.  But  the  strength  of  the  reaction  is  shown  not  only  in 
the  disqualifying  legislation  against  slaves  and  free  negroes, 
but  in  a  law  of  1855—56  which  opened  a  way  for  enslaving 
free  negroes  by  allowing  their  re-creation  as  slaves  by  free 
acknowledgment  upon  their  petitions  in  a  court  of  record,  like 
an  English  villain.  They  were  carefully  guarded  by  formal 
procedure  against  injustice  and  undue  persuasion,  however, 
in  this.  Another  instance  was  the  decision  by  the  Court 
of  Appeals,  contrary  to  accepted  legal  opinion,  against  the 
general  practice  of  allowing  a  slave,  given  the  option  of 
liberty  by  will,  to  make  the  choice  or  to  contract  for  his 
liberty.  Finally  a  law,  passed  at  the  called  session  of  1862, 
to  protect  and  indemnify  citizens  of  Virginia,  provided  that 
if  any  judge,  commissioner,  or  other  officer  or  agent  of  the 
United  States  by  a  decree  or  judgment  emancipated  the  slaves 
of  any  citizen  of  Virginia,  he  was  liable  for  twice  the  slave's 
value.  Yet  it  has  been  estimated  that  Virginians,  u  without 
any  legal  compulsion  "  and  by  "  private  beneficence,"  freed  at 
least  100,000  blacks,  as  against  a  total  of  59,421  freed  in  the 
entire  North  by  legal  means.  The  last  act  in  the  drama  of 
emancipation  can  scarcely  be  called  the  act  of  the  representa- 

27  Smith,  Philosophy  and  Practice  of  Slavery,  210-218,  et  seq. 


Manumission,  Emancipation,  and  the  Free  Man.       145 

lives  of  Virginia,   but   that   of  the  agents   of  the   General 
Government  ratifying  its  will  at  the  close  of  civil  strife. 

The  status  of  the  free  negro  had  been  of  that  gradual  defi 
nition  for  cause,  in  law  and  custom,  that  we  have  seen  marked 
that  of  various  dependents.  It  had  been  a  shifting  though 
developing  status  of  personal  and  political  liberty,  but  not  yet 
of  full  social  freedom.  The  law  required  that  a  certificate  of 
freedom,  numbered  and  registered,  should  be  given  the  freed- 
man  to  protect  him  in  his  liberty.  Without  this  proof  he 
still  had  recourse  to  two  modes  of  suit  to  establish  freedom 
against  his  former  master,  (1)  in  law,  in  forma  pauperis  as 
prescribed  by  statute,  (2)  in  equity  when  there  was  an  impedi 
ment  at  law.  In  legacies  it  was  done  by  propounding  the  will 
for  probate.  Against  third  parties  claiming  him  as  a  slave  he 
could  proceed  by  writ  of  habeas  corpus,  and  the  jury  might 
allow  damages  pending  suit.  The  disabilities  of  his  status 
were  partly  the  result  of  the  abuse  of  his  liberty  and  his 
frequent  connection  with  rebellion.  By  the  restrictive  slave 
law  of  1723  freedmen  were  still  allowed  to  enlist  as  musicians 
and  laborers  in  the  militia,  and  if  housekeepers  or  frontiersmen, 
might  keep  ammunition  and  arms.  In  1797  license  was 
necessary  for  peddling  and  trading,  to  protect  the  property  of 
whites,  and  for  many  offenses  the  freedman  suffered  not  only 
the  same  penalty  as  whites  but  39  lashes  in  addition.  The 
immigration  of  the  freed  element  was  also  restricted.  As  a 
defaulting  tax-payer  in  1819  the  free  negro  could  be  hired  out 
at  a  minimum  rate  until  the  levy  was  paid,28  as  a  vagrant  or 
illicit  trader  with  slaves  he  could  be  enslaved  for  five  years, 
and  it  was  a  duty  of  the  overseers  of  the  poor  to  make  quarterly 
inspections  into  the  condition  of  the  freedmen.  Between 
1823  and  1828,  for  crimes  punishable  with  confinement  in  the 
penitentiary  for  two  years,  and  for  the  offense  of  beating  or 
assaulting  a  white  with  intent  to  kill,  free  negroes  were  punish- 


18  Acts,  1822-3-25,  234,  238;  1831,  April  7;  1832,  March  15;  Leigh, 
Reports,  II.,  652 ;  Const.  1864,  Art.  IV.,  Grattan,  Reports,  XXII.,  466. 

10 


146  History  of  Slavery  in  Virginia. 

able  at  the  discretion  of  the  court  or  jury  with  stripes  or  trans 
portation  as  slaves.  The  penalty  was  then  made  from  five  to 
ten  years  in  the  penitentiary  for  the  first  offense  and  life  im 
prisonment  for  the  second.  Until  1825  petit  larceny  and 
grand  larceny  were  punishable  only  by  stripes,  but  grand 
larceny  thereafter  to  the  value  of  $10  involved  whipping 
and  transportation.  The  laws  in  the  thirties  became  much 
harsher,  owing  to  the  abolition  movement  and  the  fear  of 
insurrection.  The  act  of  1831  prohibiting  assemblies  or  hired 
teachers  for  slaves  included  free  negroes,  as  also  did  that  of 
1832  against  preaching.  Besides  this  the  privilege  of  carry 
ing  arms  was  taken  away,  and  a  prohibition  laid  on  selling  or 
giving  away  of  liquor  within  a  mile  of  any  assembly  of  whites 
or  blacks.  Negroes  paid  the  death  penalty  for  assaults  with 
intent  to  kill,  or  upon  a  second  offense  of  inciting  rebellion, 
and  they  were  to  be  tried  as  slaves  except  in  cases  of  homicide 
and  capital  crime.  For  receiving  goods  from  slaves  they  were 
punished  by  fine  and  imprisonment  not  exceeding  $50  and  six 
months,  and  for  selling  liquor  to  slaves  they  were  fined  from 
$10  to  $50.  To  ravish  a  white  woman,  maid  or  child  was  a 
capital  crime.  A  free  negro  could  hold  slaves  only  by  descent, 
not  by  purchase,  "  other  than  husband,  wife,  parent  or  descend 
ant."  But  a  will  leaving  him  all  the  testator's  estate,  com- 
i  prising  slaves,  was  valid  and  the  slaves  would  be  sold  for  his 
[benefit.  In  1843  he  was  allowed  to  trade  upon  the  certificate 
of  a  respectable  white  person  that  he  came  by  his  goods 
honestly.  In  1853  the  city  of  Richmond  passed  an  ordinance 
prohibiting  tree  negroes  from  keeping  cook  shops.  The  free 
negroes'  chief  civil  incapacities  were  prohibition  from  the 
suffrage  after  1723,  from  office  holding  and  from  giving  testi 
mony  against  whites.29 

The  relation  of  the  negro  to  crime  and  disorder,  as  most 
of  these  disabilities  show,  caused  great  restrictions  and  the 

29  Leigh,  Reports,  IV.,  649 ;  Grattan,  Reports,  XII.,  17  ;  XIV. ;  Acts,  1831, 
20;  Code,  1849,  458;  1858,  46;  1843,  59;  Code,  1860,  520,  note. 


Manumission,  Emancipation,  and  the  Free  Man.      147 

numerous  provisions  for  their  transportation,  taxation,  and 
non-importation.  After  the  Nat  Turner  insurrection  the  peo 
ple  of  Northampton  County  took  steps  to  raise  $15,000  for 
the  transportation  of  free  negroes,  and  their  action  was  legally 
sanctioned.  The  penitentiary  reports  up  to  1829  showed  that 
the  proportion  of  convictions  was  one  for  every  16,000  whites, 
1  for  every  22,000  slaves,  and  1  for  every  5,000  free  negroes.30 
The  census  reports  from  1840  to  1860  indicated  a  very  great 
moral  and  physical  deterioration  on  the  part  of  the  free  blacks 
as  compared  with  the  slaves  and  whites. 

At  the  close  of  the  civil  war  emigration  at  once  began  from 
country  districts  to  towns,  and  cities,  producing  there  a  float 
ing  element  of  unoccupied,  or  at  best  but  partially  occupied, 
persons,  and  left  in  the  agricultural  regions,  a  dearth  of  their 
efficient  labor  skilled  by  long  usage.  Dabney  states  that 
almost  immediately  after  emancipation,  " grists"  fell  off  by 
half,  showing  the  negro's  small  food  production  and  consump 
tion,  and  their  personal  equipment  was  soon  reduced  by  nearly 
two-thirds.31  The  general  economic  depression  of  the  State 
naturally  fell  hardest  upon  the  lowly  landless  freedman,  and 
his  rise  has  been  of  necessity  slower  and  conditioned  upon 
the  gradual  improvement  of  the  welfare  of  the  class  which 
alone  gives  him  an  employment.  His  economic  as  his  politi 
cal  future  is  thus  inseparably  bound  up  with  that  of  his  former 
master,  with  whose  true  interests  his  own  are  identical. 


30  Dew,  Debate,  40,  95. 

31  Dabney,  Virginia,  90,  92,  note. 


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INDEX. 


A. 

Abolition  of  slavery,  sentiment  for, 

127,  130. 

Abolitionists,  131,  137,  138,  141-3. 
Acts,  mode  of  publication  of,  78,  79. 
Adams,    Rev.    Dr.    Nehemiah,    on 

slavery,  141,  142. 
Africa,  3,  17  note,  21,  22. 
African  Company,  5,  10,  12,  13,  16, 

17  note,  18. 
African   Colonization    Society,    111, 

136,  137. 
Alabama,  compared   with  Virginia 

in  negro  population,  25. 
Alexander,     Rev.     Dr.     Archibald, 

preaches  to  slaves,  110. 
Alienation,  incident  of,  62,  65,  69. 
Annexation,  of  slaves  to  land,  65-67. 
Apprentices,  English  statute  of,  41. 
Apprenticeship,  in  Virginia,  45,  49 

and  note,  58. 

Argall,  Samuel,  7,  9  note. 
Arkansas,  law  similar  to  Virginia, 

61  and  note. 

B. 

Barbadoes,  6. 

Barr,  John,  manumits  slaves  by 
will,  120. 

Bermudas,  negroes  in  the,  6-9 ; 
dependence  in  the,  29  and  note,  30. 

Bowles,  Jack,  in  Gabriel's  plot,  92. 

Brass,  case  of  the  negro  servant,  30, 
31  and  note. 

Bristol,  England,  slave  traders  op 
pose  duties,  16. 

Brown,  Alexander,  8  note. 

Bruce,  Philip  Alexander,  8  note. 

Blacks,  3,  12,  24,  134;  in  proportion 
to  whites  in  Massachusetts,  134; 
overdensity  of,  in  Virginia,  139, 
141,  143 ;  freed  by  Virginia,  144. 


C. 

Carolinas,  slaves  in  the,  6,  12,  13 
note,  19,  21,  25. 

Carthagena,  expedition  against,  20. 

Census,  Virginia,  of  1623,  29  note. 

Chavis,  Rev.  John,  colored,  110. 

Christian,  legal  use  of  the  term,  47, 
49. 

Christianity,  its  effects  as  to  liberty, 
46,  48,  51  note,  52. 

Churches,  negro,  111,  114;  negroes 
in  white,  113. 

Clergy,  Benefit  of,  78,  85,  86. 

Clientela,  institution  of,  2. 

Code,  slave,  diminished  rigor  of, 
83,  84. 

Colonies,  English,  4-6,  12,  19; 
Spanish,  5,  6,  12. 

Colonization  of  negroes,  proposed, 
132,  133,  136,  138;  criticised  by 
Tucker,  134  ;  emigration  as  a  sub 
stitute  for,  135;  legislative  appro 
priations  for,  136.  137. 

Color  line,  discriminations  of  the, 
56,  57,  62. 

Comiiatus,  2. 

Commerce,  Spanish,  7 ;  policy  of 
English,  14,  19,  21. 

Commutation,  principle  of,  86,  87, 
118,  119. 

Company,  see  African  ;  South  Sea,  5  ; 
Summers  Island,  6;  Virginia,  7. 

Connecticut,  slavery  in,  34,  36,  37 
note. 

Contracts,  with  servants,  40,  42,  43 ; 
with  Indians,  49 ;  with  slaves,  72, 
73,  107. 

Convicts,  imported,  23. 

Court,  General,  of  Virginia  decisions, 
31  note,  33,  50  and  note,  64,  75, 
76,  82 ;  procedure  in  trials  of 
slaves,  82-84;  ruling  of  Massa 
chusetts  General,  on  slavery, 36  ;  of 

155 


156 


Index. 


Appeals  decisions,  51,  54,  63,  81 ; 
.Richmond  hustings,  84;  jurisdic 
tion  of  a  corporation,  as  to  slaves, 

Crime,  increase  of,    82,  capital,  73 

and  note,  85,  86,  146. 
Criminal  procedure,  as  to  slaves,  83 ; 

as  to  free  men,  84,  85. 
Crown,  policy  as  to  duties  on  slaves, 

17-20 ;  petitions  to  the,  20,  22. 


D. 

Dabney,  Rev.  Dr.  R.  L.,  on  slavery, 

101. 

Davis,  Hugh,  pnnished,  57. 
Deportation   of    negroes,    proposed, 

138. 
Dew,  Thomas,  101 ;  report  of  debate 

on  slave  emancipation,  137-138. 
Dinwiddie,  Governor,  of  Virginia,  68. 
Dismemberment,  as  a   punishment, 

84. 

Dominium,  right  of,  2,  31. 
Dower,  in  slaves,  63,  124. 
Drewry,    W.   S.,    his    work   on   the 

Southampton  Insurrection,  94  note. 
Duquesne,  fall  of  Fort,  21. 
Dutch,  privateers,  28;   importation 

of  negroes  by  the,  35  note. 
Duties,  import,  on  slaves,  11,  15  and 

note,  16-21. 
Drawbacks,  for  exportation  of  slaves, 

E. 

Education,  of  dependents,  109,  111, 

Elizabeth,  Queen,  interested  in  the 
slave  trade,  5. 

Emancipation,  in  Roman  law,  116; 
realization  of,  in  Europe,  118; 
relation  of  freedmen  to,  126,  127  ; 
sentiment  for,  127,  128, 130;  plans 
for  general,  24,  130-139;  esti 
mated  cost  of,  131,  133,  138; 
causes  for  failure  of  proposals  for, 
136,  139 ;  progressive,  143 ;  reac 
tion  against,  144. 

Emigration,  of  whites  from  Virginia, 
139  ;  of  negroes  from  country  dis 
tricts,  147. 


England,  4,  7,  11,  13-16, 17,  20,  22, 
recognizes  slavery,  34 ;  condition 
of  labor  in,  40,  41. 

Entails,  65-67  ;  abolished,  68. 

Equality,  doctrine  of  natural,  2, 129  ; 
affirmed  by  the  Virginia  Declara 
tion  of  Rights,  53  and  note. 

Estates,  legal,  in  slaves,  64-68. 

Europe,  slave  trade  in,  4. 

Evidence,of  colored  persons  received, 
73,  83. 

Extradition,  of  slaves,  76. 


F. 

Fitzhugh,  George,  on  slavery,  143. 

Fontaine,  Col.  Peter,  17,  21  note,  59. 

Forfeiture,  of  slaves,  65. 

Freedmen,  see  Free  negroes. 

Freedom,  provisions  of  the  Code  in 
favor  of,  144 ;  purchase  of,  107, 
108,  111  ;  free  services  an  evidence 
of,  119;  favorable  attitude  of 
courts  toward,  123,  124  ;  by  statute, 
123  ;  simple  procedure  in  suits  for, 

71,  73,  123,    145;    certificates  of, 
124,  145. 

Free  negroes,  importation  of,  24; 
emigration  of,  26 ;  rights  of,  71, 

72,  73;  menace  of,  56,  119;  en 
slavement  of,  56, 144 ;  discrimina 
tions  against,  62,  119,  145 ;  num 
ber  of,  121 ;  sentiment  for  removal 
of,  126,   136,   137,  147  ;  status  of, 
97,  145, 146  ;  as  slave-holders,  146  ; 
and  crime,  147. 


G. 

Gabriel,  plot  of  the  slave,  92. 
Georgia,  compared  with  Virginia  as 

to  negro  population,  25. 
Gonzales,  Antony,  3. 


H. 

Harper,  Robert  Goodloe,  aids  Afri 
can  colonization,  136. 

Hawkins,  Sir  John,  as  a  slave 
trader,  4. 

Head  rights,  10. 


Index. 


157 


Henry,  Prince,  of  Portugal,  3. 
Henry,  Patrick,  on  slavery,  130. 
Heredity,  principle  of,  in  slavery,  38. 
Hill,  Rev.  Dr.  Wra.,  110. 
Hodge,  Arthur,  of  Virgin  Islands, 

hung,  82. 

Holidays,  slave,  74,  108. 
Huston,  John,  case  of,  81. 


I. 


Incidents  of  servitude  pass  to  slavery, 
32,  37,  40,  62 ;  effect  of  modifica 
tion  of,  39 ;  legal  origin  of,  43 ; 
as  result  of  the  property  concep 
tion,  62,  63;  resulting  from  rebel 
lion,  95. 

Independence,  Declaration  of,  22, 
23,  53. 

Indentured  servitude,  41. 

Indians,  6, 7, 14,20, 72,74, 79 ;  enslave 
ment  of,  35,  36,  48,  50,  51;  danger 
from,  38,  44.  89,  119;  protected 
from  enslavement,  47,  49, 50 ;  slave 
trade  by,  48  ;  acts  concerning,  49, 
50  and  note. 

Insurrection,  plots  of,  11,  78,  79;  an 
anticipated  danger,  89;  fear  of, 
affects  legislation,  91,  92 ;  in  South 
ampton  County,  93. 


J. 


Jackson,  Gen.  T.  J.,  teaches  negroes, 

113. 

Jamestown,  first  negroes  at,  8, 
Jasper,  Rev.  John,  colored  preacher, 

94  note. 
Jefferson,  Thomas,  on  slavery,   16, 

24,  128-130;   his   bill  abolishing 

entails,   68;    plans  emancipation, 

131-133. 
Jews,  as  slaves,  46,  53 ;  disability  of 

free,  58. 
Justinian,  on  sources  of  slavery,  44. 


K. 

Kentucky,    legislation    affected    by 
Virginia,  61  and  note. 


L. 

Labor,  dependent,  2,  4,  6;  scarcity 
of,  10  ;  free-contract,  develops  into 
servitude,  32  ;  relation  of  negroes 
to,  109,  110;  proportion  of  slaves 
to  whites  in  agricultural,  134. 

Lagos,  Company  of,  3. 

Land  values,  supposed  to  depend  on 
slavery,  138. 

Las  Casas,  Bishop,  his  relation  to 
negro  slavery,  4,  46. 

Lease  system,  as  to  slaves,  106. 

Legislation,  explanation  of  restric 
tive,  89. 

Liberia,  colony  of,  136,  137. 

Liquor,  duties  on,  14. 

Liverpool,  slave  traders  of,  16. 


M. 

Madison,  James,  opposes  slavery,  130. 

Manumission,  in  Koman  law,  116  ; 
in  English  law,  117;  restrictions  on, 
119,  120,  125,126;  modes  of,  120- 
122;  records  of,  124;  number 
benefitting  by,  144. 

Maine,  Sir  Henry,  on  contractural 
origin  of  slavery,  42. 

Marriages,  mixed,  9;  discouraged, 
57  ;  prohibited,  75;  of  whites  and 
Indians,  59. 

Maryland,  12,  13  note,  21,  25,  26,  33  ; 
African  Colonization  Society  of, 
136. 

Massachusetts,  servitude  and  slavery 
in,  6,  33;  Fundamentals,  34; 
papers  accuse  Gov.  Seward,  76. 

Masters,  duties  of,  75,  80,  95,  96,  98, 
100;  rights  of,  37-39,  62,  76-78, 
80;  of  vessels,  77  ;  affection  of  slaves 
for,  98,  99,  106. 

Master  and  servant,  tie  of,  99,  106. 

Meade,  fit.  Rev.  William,  on  slavery, 
140. 

Mestizos,  class  of,  61. 

Militia,  exemptions  from  service  in 
the,  73,  79 ;  enlistment  in  the,  74 ; 
protection,  90,  91  note. 

Mohammedans,  enslaved,  46;  dis 
ability  of  free,  58. 

Monroe,  James,  aids  African  coloni 
zation,  136. 


158 


Index. 


Moors,  as  slaves,  3,  48,  52  ;  disability 
of  free,  58. 

Muster  of  Virginia  population  in 
1624-25,  29  note. 

Mulattoes,  enslaved,  39,  43,  52,  60 ; 
class  of  free,  43  note,  45 ;  increase 
of,  44,  59 ;  small  class  of,  61  ; 
disabilities  of,  58  ;  penalty  for  sale 
of,  60  and  note ;  definition  of,  58, 
60,  61 ;  treatment  of,  in  the  North, 
62. 

N. 

Nar,  negroes  from  the  island  of,  3. 

Negroes,  importation  of,  3,  5-8  and 
note,  9-11, 14;  prices  of,  i3  ;  popu 
lation  of,  23,  24,  26 ;  in  the  Ber 
mudas  and  in  Virginia  not  slaves, 
8  and  note,  28;  servitude  of,  29 
note,  31,  32,  47;  enslaved,  10,  34, 
39,  46,  47,  52,  56  ;  viewed  as  men, 
54 ;  discrimination  against,  56,  88, 
95;  definition  of,  59,  61  and  note; 
restrictions  on  marriage  with,  57, 
59,  62 ;  as  doctors,  86 ;  education 
of,  109-111,  113;  as  church  mem 
bers,  111,  113. 

New  York,  76 ;  civil  law  sanction  of 
slavery  in,  34. 

North  Carolina,  encourages  African 
colonization,  136. 

Nicholson,  Governor,  discontinues 
land  grants  for  imported  slaves, 
13. 

o. 

Olmstead,  F.  W.,  on  slavery,  141. 
Overseers,  73,  75,  102-104. 


P. 

Patria  potestas,  at  Rome,  2,  80,  116. 

Patrol,  for  slaves  and  servants,  89, 
90;  powers  of  the,  91. 

Payne,  James  S.,  colored,  President 
of  Liberia,  137. 

Peculium,  71,  109. 

Pemck,Rt.  Rev.  Charles  C.,  mission 
ary  to  Liberia,  137. 

Penitentiary,  76. 


Pharoah,  warning  of  Gabriel's  plot 
by  the  slave,  92. 

Piracy,  7,  8,  16. 

Plantations,  75,  76  ;  extent  and  loca 
tion  of,  105. 

Population,  negro  and  white,  11,  12, 
24,  25. 

Portugal,  commercial  expansion  of, 

Potestas,  dominica,  at  Rome,  40. 

Preston,  Col,  J.  T.  L.,  113. 

Public   works,   revenue   from   slave 

importations    expended    on,     16 

note. 

Q. 

Quebec,  fall  of,  21. 


R. 

Race,  penalty  for  mixture  of,  5,  7, 
44;  as  criterion  for  slavery,  45, 
56 ;  extent  of  blood  of,  58,  59. 

Randolph,  Thomas  J.,  plans  emanci 
pation.  137,  138. 

Rape,  punishment  of  attempted,  84. 

Rebellion,  slave,  14,  91 ;  penalty  for 
advocating,  95. 

Revenue,  from  slaves,  13, 14,  16,  18; 
royal,  17  ;  acts,  15  note. 

Revisals,  of  laws,  15  note,  56. 

Revolution,  the  American,  5,  19,  23. 

Rich,  6'ir  Robert,  5,  7,  9  note. 

Rights,  doctrines  of  inalienable,  2, 
129 ;  Virginia  Declaration  of,  53. 

Roman  Law,  on  slavery,  38-40,  44. 


S. 


Servants,  10,  15  note,  72,  73 ;  negro 
and  Indian,  35  ;  sources  of,  42  and 
note ;  made  slaves,  57 ;  mulatto, 
59,  60;  convict  and  "spirited," 
79 ;  absconding,  80. 

Servitude,  institution  of,  2,  31  note, 
42,  72,  77  ;  basis  of  slavery,  31,  32  ; 
product  of  customary  law,  33 ; 
effect  on  slavery,  33  note ;  legal 
sanction  of,  in  the  colonies,  36 ; 
transition  into  slavery,  37,  39; 


Index. 


159 


colonial  origin  of,  41 ,  42 ;  personel 
in,  42  note ;  as  a  legal  penalty,  45. 

Seward,  Gov.  William  H.,  of  New 
York,  76. 

Slaves,  legal  status  of,  9-96;  social 
status  of,  96-115;  breeding  of,  36, 
98  ;  rights  of,  28,  71-75,  78,  95,  97, 
102,  108,  109;  legal  designation 
of,  52,  53  ;  vested  interests  in,  55  ; 
as  personalty,  62,  63,  65,  69,  70 ; 
as  realty,  63,  64,  66,  69,  70 ;  en 
tailed,  64  ;  as  currency,  69  ;  liable 
to  seizure,  62,  66,  67,  69 ;  gifts  of, 
68 ;  personalty  of,  71-73,  82,  97  ; 
population  of,  10,  134 ;  taxation 
on,  11-21,  72;  stealing  of,  76,  77  ; 
killing  of,  78,  81  ;  when  killing  of, 
murder,  82  ;  on  trial  defended  by 
masters,  83 ;  sueing  for  freedom 
privileged,  84  ;  favored  in  criminal 
procedure,  85 ;  reprieved  for  trans 
portation,  86 ;  favored  in  penal 
legislation,  88;  commit  few  of  the 
higher  crimes,  89  ;  restricted  as  to 
assemblies,  90  ;  religious  and  secu 
lar  instruction  of,  90,  95,  Iu9-114; 
family  rights  of,  97,  98,  102;  in 
the  family,  100,  118  ;  maintenance 
of,  102-103;  distribution  of,  105; 
leases  of,  76,  80,  106 ;  occupations 
of,  107,  108  ;  personal  bond  be 
tween  masters  and,  114;  modes  of 
establishing  title  to,  117  ;  fugitive, 
78,  125;  when  removed  to  other 
states,  might  be  freed,  123,  124; 
exportation  of  female,  126;  impor 
tation  of,  restricted,  125,  126 ; 
manumitted,  119-121,  123,  127, 
144. 

Slave  dealers,  greed  of,  60. 

Slave  trade,  European  nations  in  the, 
3-6 ;  in  the  Bermudas  and  in 
Virginia,  6-23. 

Slavery,  African,  1-3  ;  development 
of,  1,  27  et  seq. ;  distinguishing 
mark  of,  28  ;  political  and  domes 
tic,  29  ;  statutorv  sanction  of,  33, 
34 ;  of  Indians,  35,  36,  47,  49,  51 ; 
customary  sanction  of,  36 ;  doc 
trines  of,  38,  57  ;  statutory  exten 
sion  of,  in  the  colonies,  39  ;  natural 
sources  of,  44 ;  philosophic  basis 
of,  45  et  seq.  ;  as  a  means  of  Chris- 
tianization,  46  ;  subjects  of,  46,  48 ; 
nominal  test  of,  49 ;  as  a  preventive 


penalty,  51 ;  incidents  of,  65,71-77  ; 
Roman,  71,  74 ;  analogous  to  vil 
lainage,  96;  patriarchal  charac 
ter  of,  99, 100  ;  tends  toward  servi 
tude,  115,  118;  its  supposed  effect 
on  land  values,  138 ;  abolished, 
145  and  note ;  apologetics,  142-4. 

Smith,  Rev.  J>.  John  Blair,  110. 

Smith,  Rev.  Dr.  William  A.,  lectures 
on  slavery,  143. 

Society,  position  of  labor  in  indus 
trial,  1,  2. 

Southampton  County,  insurrection 
in,  93-5,  98. 

Spain,  in  the  slave  trade,  4,  5. 

Spotswood,  Gov.  Alexander,  14,  15, 
16  and  note. 

Status,  creation  of  legal,  27 ;  im 
posed  by  English  and  Dutch  on 
negroes,  28 ;  of  servitude  changed 
to  slavery,  37,  38 ;  of  dependent 
labor,  40  ;  of  the  slave,  27-115  ;  of 
freedom,  a  development,  117 ; 
transition  of,  118. 

Sugar,  as  a  cause  of  importation  to 
the  Bermudas,  6. 

Sunday  Schools,  for  negroes,  133. 

Sweet,  Kobert,  punished,  57. 


T. 

Tariff,  see  Duties. 

Tax,  incidence  of  that  laid  by  duties 
on  slaves,  17  and  note;  objection 
to  a  poll,  18. 

Tobacco,  low  price  of,  14,  15. 

Trade,  Lords  of,  13;  British,  17; 
Board  of,  21  note. 

Traders,  English  slave,  10,  12,  17 
note,  18,  21 ;  American  slave,  21 ; 
views  of,  48  note  ;  domestic  slave, 
102,  105,  106. 

Treasurer,  the  ship,  7  and  note,  8,  9 
and  note. 

Tucker,  Professor  George,  on  ex 
tinction  of  slavery,  139. 

Tucker,  St.  George,  on  slave  trials, 
85 ;  on  racial  discriminations,  89  ; 
on  slavery,  129 ;  plans  emancipa 
tion,  24;  133-136. 

Turks,  as  slaves,  48,  52. 

Turner,  Nat.,  negro  preacher  raises 
revolt,  93  et  seq. 


160 


Index. 


U. 

United  States,  agents  emancipating 
slaves  liable,  144;  alleged  viola 
tion  of  provision  of  the  Constitu 
tion  of,  76. 

Utrecht,  treaty  of,  affects  the  slave- 
trade,  5,  12. 

V. 

Vassalage,  European,  2,  28. 

Villains,  restrictions  in  the  alienation 
of,  63 ;  condition  of,  66,  67 ;  crea 
tion  and  enfranchisement  of,  117. 

Villainage,  in  England,  2,  28,  38- 
40,  65,  77,  117. 

Vinogradoff,  Paul,  on  the  principle 
J'  regardant "  in  villainage,  66. 

Virginia,  efforts  to  restrict  importa 
tion  of  slaves,  12-23;  prohibits 
the  slave-trade,  23 ;  negro  popu 
lation  in,  24-26 ;  first  negroes  in, 
28  ;  servitude  in,  33 ;  sanction  of 
slavery  in,  34;  Declaration  of 
Eights  of,  53,  55;  Assembly  of 
1831-32,  debates  the  question  of 
emancipation,  99. 


w. 

Washington,  Bushrod,  favors  Afri 
can  colonization,  136. 

Washington,  George,  on  abolition  of 
slavery,  130. 

West  Indies,  Spanish,  3,  4,  6-8,  21 ; 
slave  practice  in  Spanish,  98; 
French,  134. 

White,  Rev,  Dr.  William  S.,  on  the 
negro  preacher  "Jack,"  112. 

Whites,  enslaved  by  Moors,  3 ;  pop 
ulation  of,  12,  24,  25,  134;  race 
mixture  of,  with  blacks,  44;  ban 
ishment  of,  45  note,  57,  58 ;  dis 
criminations  in  favor  of,  57  and 
note,  78  ;  discriminations  against, 
75. 

Wythe,  George,  Chancellor  of  Vir 
ginia,  advocates  freedom,  54;  as 
a  codifier,  32. 


z. 

Zuniga,  Spanish  Ambassador  in 
England,  on  marriage  of  whites 
with  Indians  in  Virginia,  59. 


ERRATA. 


Page  8  note,  Immigrants  should  be  Emigrants. 

Page  45,  line  10  from  bottom— the  second  "  and  "  should  be  omitted. 


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